Comm Law Exam 2

consent

"Besides asserting a First Amendment or newsworthiness defense, defendants in private-facts cases may also argue that the plaintiff consented to publication. Consent may be explicit or implied." ● Implied consent: serve as subject for a photograph or printed story ● "However, consent might not be implied if people interviewed fail to understand who they are talking to or that their interview might not be published or broadcast." ● "Consent to have one's picture published in news columns does not include consent to have the picture used in a commercial context." → see example of the Titicut Follies documentary

intellectual property

"Intellectual property was protected in the Constitution before adoption of the First Amendment. Article I, Section 8, of the U.S. Constitution gives Congress the power to 'promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" (p. 246). "Section 8 encourages intellectual creativity of benefit to society by granting creative people exclusive control over their intellectual expression for a fixed period, after which the work passes into the public domain" (p. 246). "Thus, copyright not only benefits society by spurring creative expression; it also benefits 'authors' by allowing them to control and profit from their creative expression for a limited time" (p. 246)

minor falsification

"Minor falsehoods that offend only hypersensitive individuals are not sufficiently offensive to support a false-light suit." ● Example of the Fogels, whose photo of them waiting to get ticket information appeared in Forbes magazine alongside a story about Latin American tourists reselling FL goods in Latin America to boost the Miami economy → False-light and libel suit that the photo created the false impression they were complicit ● Judge: The photo did not imply they were part of this trade, and that "neither the Fogels' reputation nor privacy would be violated if the photo and story did imply they bought goods in the United States for legal resale elsewhere."

the public domain

"Private-facts plaintiffs can successfully sue only if the highly embarrassing information revealed about them is, in fact, private." ● Open court records: The Court "created a constitutional right for the media to report information contained in records available in an open courtroom" by ruling that a father couldn't bring a privacy suit on behalf of his daughter → Cox Broadcasting Corp. v. Cohn (1975) → First Amendment doesn't protect against media sharing "private information contained in public records that are part of an open court proceeding" ● Voluntary disclosure: No claim to privacy when disclosed on digital media platforms

the copyright act of 1976

"The Copyright Act of 1976 included several changes that made it easier for authors to control when and how their works are used by others. The 1976 revision also made copyright law more uniform by preempting state copyright law" (p. 247). → Since then, technological changes have prompted additional changes in copyright law (p. 247).

fair use (including four criteria and accompanying material)

"The fair-use doctrine creates an exception to the law prohibiting unauthorized copying of copyrighted expression. The fair-use doctrine is the law's attempt to reconcile the 'exclusive rights' granted to authors to encourage creativity with a sometimes conflicting interest in ensuring that knowledge of creative achievement is widely disseminated and discussed" (p. 269). "Productive" purposes, e.g., "news reports, criticism, and comment," especially when it's "transformative" → "the author 'adds something new' by altering the original with 'new expression, meaning, or message'" (p. 269) without being too extensive (p. 269) → Section 107 of the Copyright Revision Act 1. "The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes" ● "'Criticism, comment, news reporting, teaching, . . . scholarship or research'" (p. 270) ● News and comment (p. 270) → "reporters and scholars can quote brief excerpts from copyrighted works without paying royalties" (p. 270) → earlier mentioned case re. Google books → Pres. Obama "Hope posters" (2011 case) between Shepard Fairey and the AP: Agreed to share the rights to make the posters and other merchandise (Fairey used the AP photograph as a "'visual reference'" (p. 271)) ● Parody (p. 271): Parodies that are transformative constitute fair use, particularly since parodies "must quote 'the original's most distinctive or memorable features' if the audience is to recognize the original" (p. 272) ● "[D]rawing on copyrighted work to create satire is less likely to be a fair use than drawing on copyrighted work to create a parody" since parodies copy from the objects they mock, whereas satires draw from works to mock something else" (pp. 272-273) → e.g., South Park/fair use: Butters singing from "WWITB" video → transformed into a parody Fair Use: (1) Purpose and Character of the Use (cont.) ● Teaching and noncommercial research: Single copy of a chapter in a book, or single article from a magazine/newspaper + multiple copies for a class ● Personal entertainment: Normally does not count as fair use, but single recording of a freely broadcast song or program (e.g., Sony Betamax case) → Audio Home Recording Act of 1992, which "permitted digital recordings for individual use, but . . . prohibited serial recording and did not contemplate widespread distribution of perfect digital copies via computer networks and DVDS" (p. 274) Fair Use: (1) Purpose and Character of the Use (cont.) ● Scooping a news competitor: "The Supreme Court has ruled that a news organization that steals and publishes a competitor's news may infringe copyright" (p. 274). → e.g., Harper v. Nation case: "The Nation, in the Court's opinion, was less interested in reporting news than in creating a news event of its own" (p. 274) → "by knowingly exploiting a stolen manuscript" (p. 275) ● Corporate copying, e.g., "corporations that copy journal articles for different internal departments violate a publisher's copyright" (p. 275), or copying of segments of news programs → e.g., company that sold segments to the individuals/institutions featured in the news stories (p. 275) → e.g., online news monitoring service that gave AP news excerpts to paying customers, which diminished the market of the Associated Press (p. 276) 2. "The nature of copyrighted work" 3. "The amount and substantiality of the portion used in relation to the copyrighted work as a whole" ● Nature of the copyrighted work: e.g., length, factual/fictional nature, effort involved, and its availability (p. 276); novels/plays/movies > news reports > databases/lists/stock tables; a few words from a song or poem may be infringement; high protection for unpublished manuscripts and letters (p. 276) ● Amount and substantiality of the portion used: quantity (generally cannot copy whole work; Sony Betamax case: a rare exception) + quality (if high, small amount may be infringement), e.g., "The Supreme Court said the Nation's copying was similar to CBS's infringement of Charlie Chaplin films when the network copied brief but important segments" (p. 278). 4. "The effect of the use on the potential market for, or value of, the copyrighted work" (p. 270) https://copyright.gov/fair-use/more-info.html ● Effect on the plaintiff's potential market: "the most important factor for determining fair use" (p. 278) ○ Wainwright Securities, Inc. v. Wall Street Transcript Corp.: "summaries of commercial reports infringed a copyright because they made it unnecessary to purchase the original" (p. 278) ○ "the Transcript 'appropriated almost verbatim the most creative and original aspects of the reports" (p. 279) ○ Contrast with the Sony Betamax case: the Court said "producers, broadcasters, and advertisers might benefit from home recording because time-shifting allows more people to view a broadcast" (p. 279) → "Four dissenters in the Betamax case argued home recording of complete over-the-air broadcasts did present a potential risk to the producers' market" (p. 279). ○ "More recently, courts have ruled viewers do not infringe copyright when they record in the cloud for personal use" (p. 279)

fault

"The media are protected in false-light suits by the First Amendment fault requirement imported by the Supreme Court from the law of libel. In Time, Inc. v. Hill, decided three years after New York Times v. Sullivan, the Court ruled that false-light plaintiffs involved in issues of public interest may not successfully sue for false light without proving that publication was made with New York Times actual malice." → The Hills had to prove malice (despite their status as private people in public interest issue) ● Practical takeaway: "Malice in false-light cases, like malice in libel, comprises a combination of reckless or knowing practices, such as fabrication of quotes, reliance on unreliable sources, and failure to heed warnings." → e.g., Eszterhas misrepresenting he'd interviewed Cantrell ● Some courts have argued that private false-light plaintiffs should not have as much of a burden of proof (since Cantrell): "These courts, which see the false-light tort as paralleling libel, focus on the status of the plaintiffs—whether they are private persons or public figures—rather than on public interest in the subject." ● Interesting libel case of author Gwen David Mitchell, who didn't disguise an identity in her novel ("a psychologist who conducted nude encounter groups") → Dr. Paul Bindrim ● "The Bindrim case is a warning that once real people convince a jury they are identified in a fictional work, the author's attempts at disguise become evidence of falsification and, in the Bindrim case, defamation. Attempts to disguise real people may also be evidence of malice because malice is knowing falsehood."

copyright

"There is great tension between copyright owners—film studios, record companies and publishers—who tend to emphasize their property rights to control the distribution, copying and performance of their works, and creative entities—which want to innovate and create new works by borrowing from works still under copyright protection" (p. 246). "The entertainment, music and media companies are also waging a 'quiet war' against Google and other giant tech companies to keep copyrighted photos, videos and songs off the Internet" (p. 246)

the defendents case: anti-slapp summary judgment statutes of limitations truth protected opinion exaggeration and figurative terms totality of the circumstances absolute privileges (privilege for government officials, consent, privilege for broadcasts by political candidates) qualified privileges preventing libel suits retractions

"This section covers the defenses of truth, the media privilege to report official records and proceedings, and the protection for opinion." Other defenses: "statutes of limitations, the absolute privilege enjoyed by government officials, a privilege for broadcasters fulfilling political programming requirements, consent, neutral reportage, self-defense, and a qualified privilege for internal communications." ANTI-SLAPP ● Libel defendants: news media, non-media businesses, nonprofit corporations ● "Libel suits intended to silence citizen activists or news media reporting on matters of public concern by abusing the legal process are called Strategic Lawsuits Against Public Participation (SLAPP). [...] As of 2019, 31 states and the District of Columbia had enacted statutes to provide procedural remedies for victims of SLAPP suits, often called anti-SLAPP laws," which are "increasingly important for journalists and citizens who are threatened with meritless defamation actions." → particularly strong in California and Texas ● "States without anti-SLAPP protections now find themselves as destinations for domestic 'libel tourism.' There is a reason that plaintiffs bringing defamation actions with no hope of success—either because the statements are opinion, or rhetorical hyperbole, or are protected under Section 230 of the Communications Decency Act—in certain jurisdictions." SUMMARY JUDGMENT ● summary judgment: "A ruling by a judge that there is no dispute of material fact between the two parties in a case, and that one party should win the case as a matter of law. A summary judgment precludes the need for a trial." ● "If judges are satisfied before trial that plaintiffs cannot prove their cases, the judges may terminate the case before trial by awarding defendants summary judgment. The media understandably favor summary judgment because libel cases that end before trial do not go to juries; when cases do go to juries, publishers are apt to lose more often than they win." ● "A judge should issue a summary judgment if the plaintiff's case is too weak to prevail and there is no 'genuine' dispute over a 'material' fact that the jury must decide." STATUTES OF LIMITATIONS ● "A state's statute of limitations is a sure and often easy way to defeat a libel suit. For almost all criminal and civil actions, prosecutors and plaintiffs must file a suit within a specified period, which in a libel suit is usually from one to two years from the date of publication." ● Most jurisdictions: single-publication rule, by which "the clock starts running when the libel is first published" TRUTH ● Most states: Libel defendants can win by proving the defamation is true → since 1964 (New York Times v. Sullivan), less important defense since plaintiffs were required to prove falsity and fault: "Now if a plaintiff fails to establish that a remark is false, the defendant wins without having to prove the publication is true." ● Difficulty of proving truth: unavailable evidence, reporter's sources may refuse to testify or lack credibility, and/or jury may not believe testimonies PROTECTION FOR OPINION ● "If plaintiffs can't prove falsity, they can't win their libel suit. Often plaintiffs can't prove falsity because the story they claim libeled them consists of opinion that can't be proven to be false." ● "Statements of purported opinion, such as, 'In my opinion John Jones is a child molestor,' are not protected opinion, the Supreme Court says, if they connote provably false statements of fact." → Thus, an opinion is protected speech if it is not provably false. But protected opinion must so exaggerate as to be unbelievable or be based on fact, not on unsubstantiated rumor. Likewise, opinions based on fact—opinions that do not imply unstated, defamatory falsehoods—are protected. ● "The Supreme Court ruled the term liar might be a defamatory false fact when employed by an Ohio journalist in a column." "Suits on opinion pieces published by news organizations are seemingly on the rise" → Trump + Sarah Palin "The litigiousness of anti-media politicians like Trump and Sarah Palin, whose lawsuit against the New York Times based on an editorial took five years to go to a trial before a jury ruled against her in 2022, continues to have chilling effects on journalists. As Tony Norman, then-president of the National Society of Newspaper Columnists, said, 'I don't know anyone who'd write about Palin now, even if they're totally in the right. I don't even mention her name in my columns if I can help it.'" EXAGGERATION AND FIGURATIVE TERMS ● Protected opinions: Words that are exaggerated or used figuratively: the Supreme Court has deemed "incapable of a factual interpretation" → "In Greenbelt Cooperative Publishing Association v. Bresler, the Supreme Court said the term blackmail clearly did not imply the false, defamatory fact that Bresler was guilty of a crime" but was instead "rhetorical hyperbole" rather than fact ● "However, the term blackmail could be defamatory if it was intended to mean that a person employed criminal means to gain advantage." ● Another case [National Ass'n of Letter Carriers v. Austin]: the Court said "traitor in a union newsletter did not convey a defamatory meaning when applied to an employee who crosses a picket line." "In 2019, Tesla and SpaceX founder Elon Musk won a defamation case brought by a British man who had helped rescue children trapped in an underwater cave in Thailand. On Twitter, Musk called the man 'pedo guy' and in emails called him a 'child rapist,' but a jury in Los Angeles ruled in favor of Musk, apparently agreeing with Musk's attorney's argument that the statements were not intended to be statements of fact, but rather mere insults." TOTALITY OF THE CIRCUMSTANCES ● Based on common law: "courts examining the totality of circumstances distinguish fact from opinion by evaluating various factors, usually including an examination of the ordinary meaning of the statement, whether the statement is verifiable, and the linguistic and social context in which a statement occurs." → five criteria: 1. "common usage or meaning of words" 2. "whether a statement is verifiable," or "objectively capable of proof or disproof" 3. "the social context in which a statement occurs" 4. "the linguistic context" 5. "the format of a statement" ABSOLUTE PRIVILEGES Absolute privileges [generally of media] "protect the speaker of a defamatory message regardless of the speaker's accuracy or motives" 1. "the spoken and written words of public officials acting in their official capacity" 2. "to defame a person who consents to be defamed" 3. "the false defamatory speech of political candidates" 1. Privilege for government officials ● "The courts have decided that open and uninhibited communication in government must be protected at the risk of damaging individual reputations." ● Many states: "an absolute or a qualified privilege for lower-level legislators such as city council members" ● "Federal executive branch officials with policymaking authority have a broader absolute privilege than members of Congress." 2. Consent ● "A settled area of law prohibits people from collecting compensation if they are harmed by activities they agree to. In libel, this means that people cannot successfully sue for libel if they initiate or authorize publications that damage their own reputations." ● "Explicit consent to defamatory publication is rare. Few people authorize the publication of remarks that may damage their reputations. However, in addition to explicit consent, the courts have, on rare occasions, recognized implied consent." → example: Rev. Robert Langford agreed to talk to Vanderbilt student newspaper about his libel and privacy suit against campus magazine 3. Privilege for broadcasts by political candidates "Broadcast stations have been granted an absolute privilege to air libel during political broadcasts. In 1959, the Supreme Court said that broadcasters would not be held accountable for defamatory remarks made by political candidates during time provided under the equal opportunities provision." → 1934 Communications Act, Section 315 QUALIFIED PRIVILEGES ● "[R]eporters have a qualified privilege to report on official activities." ● The reporter's qualified privilege (common-law defense), "protects journalists who report defamatory comments made in official proceedings as long as the stories are fair and accurate." ● Official proceedings: Legislative branch → "The privilege applies to reports of the activities of the U.S. Congress, state legislatures, county commissions, city councils, community school boards, and university boards of trustees" ● Official proceedings: Executive branch → "The reach of the privilege to report executive branch activities is not always clear. [...] Most legal authorities argue that the reporter's qualified privilege is triggered when official conduct is clothed by an official's absolute privilege. ● Reporting arrests: Journalists should be extra cautious when reporting on arrests (not doing so prematurely, and using the correct terminology (arrested vs. invited) → don't rely on "alleged" if not quoting official sources ● Official proceedings: Judicial branch → "any statements during the official judicial process by all legitimate participants, including judges, witnesses, jurors, litigants, and attorneys" + "opinions and conclusions that fairly represent court testimony" + "fair and accurate reports of all judicial proceedings" ● "The press might not have a privilege to report about documents that are irrelevant to the case they are filed with" ● Unofficial proceedings → "In some states, reporters are privileged to report unofficial but open meetings held to discuss matters of public concern. → (e.g., of "union members, churches, political parties, civic groups, and medical and bar associations") → Private gatherings are not usually privileged, unless (in some states) it pertains to public interest matters and is open to the public ● Conditions of privilege: Accuracy and fairness: "Any story and headline based on a official proceeding must accurately reflect what was said. Relatively minor errors will not defeat the privilege, but a substantial error or distortion can" ● Conditions of privilege: Attribution and Common-Law Malice: "In most cases, the media can claim a privilege only if they inform readers, viewers, and listeners that a story reports an official proceedings. This means that both the story and the headline must include an attribution." ● Neutral reportage: "allows the media to report on newsworthy statements by reliable sources even if the reporter doubts the accuracy of the remarks" → "The few courts that have adopted neutral reportage say the protection is important to permit the public debate of controversial issues encouraged by the First Amendment." ● See five usual charges in cases of neutral reportage (1) newsworthy, public controversy; (2) made by a responsible person/organization; (3) about public official/figure; (4) "accurately reported alongside opposing views"; and (5) "reported impartially" ● Self-interest or self-defense: "[I]ndividuals and businesses are protected from defamation suits when they publish libelous statements to combat attacks on their own reputation." ● Privileges for: "members of an organization," such as business partners or corporate employees, + protection of defamatory messages "that affect the welfare of the receiver, particularly if the receiver has requested the information PREVENTING LIBEL SUITS "Often communicators can avoid libel suits if they respond promptly and respectfully to disgruntled readers and viewers." → (1) handle complaints, (2) respond to questions, and (3) publish a retraction → take notes, be respectful, & contact your editor/publisher, but speak to attorney (do not automatically admit error without doing so first) RETRACTIONS ● Readers/viewers, in many states, must request retractions within a certain time after publication ● Statutes often require media have the opportunity to retract before a suit is filed ● Retractions might not reduce damages by law, but juries may grant lower damages when retractions are published

the plaintiffs burden of proof 6 categories

"To win damages in a libel suit, a plaintiff must establish certain claims to the satisfaction of a jury. This obligation is called the plaintiff's burden of proof." "To sue successfully for libel, most plaintiffs must prove the following: 1. defamation—that there was defamatory language 2. identification—that the defamation was about the plaintiff 3. publication—that the defamation was disseminated 4. fault—that the defamation was published as a result of negligence or recklessness 5. falsity—that the statement was false, a burden only for persons suing for defamation related to matters of public concern 6. personal harm—such as a loss to reputation, emotional distress, or the loss of business revenues."

libel

"[T]he U.S. Supreme Court still recognizes reputation as one of a person's most important possessions. [...] The law that allows individuals to sue for damaged reputations creates financial risk for newspaper reporters, broadcasters, bloggers, and tweeters." "The fear of costly libel suits impeding robust public affairs journalism makes defamation one of the most important issues in the law of public communication." "Besides being a common threat to publishers, libel also is one of the most complicated. Libel law is complex in part because it originated in 50 versions as state law." "The chapter begins with a discussion of libel terminology and the legal burden borne by the plaintiff suing for libel. The chapter then reviews libel damage awards. Finally defenses to a libel suit are discussed along with media tactics to deter libel suits and libel reform proposals. ● "Traditionally, written or printed defamation is libel, whereas spoken defamation is slander." ● "However, broadcasting blurs the distinction between libel and slander because broadcasting carries the spoken defamation to a large audience. The Restatement (Second) of Torts, an influential summary of tort law, argues that defamation by broadcast should be treated in the same way as print defamation because defamation in radio and television can damage a reputation as badly as defamation in print."

personal harm: damage, injury or harm (6 of 6 categories required to prove libel) presumed damages compensatory damages punitive damages

1. Presumed damages: "the loss of reputation that a defamation is assumed to cause" → public officials can be awarded presumed damages by proving New York Times actual malice → both public and private figures must do so to collect presumed damages from media → private figures need not do so for non-public matters 2. Compensatory damages: "the degree of fault, the number of people who may have read or heard the defamation, the seriousness of the defamatory charge, the degree of injury suffered, and the character and reputation of the litigants": (1) actual damages, "awards for the proven loss of good name, shame, humiliation, and stress," and (2) special damages, "compensate for lost revenues and other out-of-pocket losses resulting from defamation" → e.g., financial harm to a business 3. Punitive damages: "awards imposed not to compensate for lost reputation but to punish the libeler" → "intended to punish a publication for defamation and to deter other publications from bad behavior rather than to compensate the plaintiff for injury to reputation" → but fear of self-censorship among journalists

types of infringement direct (including afp v. morel, agence france presse and getty images) contributory vicarious

1. direct infringement: "A person directly infringes a copyright by copying, performing, or otherwise violating a copyright owner's exclusive rights without permission" (p. 264). → e.g., downloading music illegally; AFP v. Morel, Agence France Presse and Getty Images, case of news organization publishing photos of the 2010 Haitian earthquake from Daniel Morel's (photographer/copyright holder) Twitter account → award $1.2 million for infringement of his copyrighted photos 2. contributory infringement: "contribute to the infringement of others or knowingly cause others to infringe, but they do not necessarily infringe directly themselves" (p. 265). → e.g., Napster "provided the server from which music files were shared" (p. 265) → analogous Supreme Court ruling regarding peer-to-peer file-sharing software (Grokster, p. 266) → contrast with the famous 1982 SONY Betamax case regarding the videocasette recorder, used for "time-shifting," allowed viewers to record programs at their times of choosing 3. vicarious infringement: "when someone has the right and ability to supervise the infringer's activity—and therefore can stop it—and benefits from the infringement" (p. 267) → e.g., Napster ruled a vicarious infringer, as well (its financial interest)

history of copyright

Brief history of copyright ● "The British originated copyright as a method of censorship after Gutenberg invented the printing press in the 1440s. In 1556, the British Crown granted the Stationers' Company a monopoly on printing, primarily to check the spread of the Protestant Reformation. By requiring that all published works be registered with the Stationers' Company, the government made it easier to block dissemination of heretical writings that threatened the Crown" (p. 246). ● Legal protections were not for authors' benefits, but rather to establish a monopoly of publishers → Led to the debate about whether ideas could be "owned," and critics of monopoly argued that writers needed the incentive of profit to produce good works [James Van Horn Melton, The Rise of the Public in Enlightenment Europe (2012), p. 139] ● However, authors and publishers also started to want to stop the copying of their publications: registration system developed protection from this → Statute of Anne of 1710: "[t]he first statute to recognize the rights of authors . . . which granted authors the exclusive right to publish their new works for a renewable 14-year term" (p. 247) Brief history of copyright (cont.) United States: first federal copyright law (1790), which "protected an author of any 'book, map or chart' from unauthorized copying for a renewable fourteen-year term (p. 247) → revised in 1909 and 1976 → prints: 1802 → musical compositions: 1831 → photographs: 1865 → paintings: 1870

commercialization and consent

CONSENT In addition to First Amendment and newsworthiness defenses → consent 2. Broadcasters/publishers don't usually need consent to present people in newsworthy reports (not considered commercial appropriation) → "However, advertisers and public relations practitioners normally should acquire written consent from participants in commercial advertisements and public relations promotions." 3. "A name or picture should not be used commercially after consent has expired." 4. "Altering or falsifying materials may also violate a consent agreement." 5. "Releases must be signed by mentally competent adults." → parents on behalf of minors 6. "Unrestricted-use contracts allow great flexibility to advertisers and the media," but signers may regret it later. Besides the First Amendment and newsworthiness, consent is a defense in commercialization cases. A broadcaster or publisher generally need not acquire consent to present people in newsworthy reports because newsworthy uses of a person's identity are not considered commercial appropriations. However, advertisers and public relations practitioners normally should acquire written consent from participants in commercial advertisements and public relations promotions. As with any contract, consent agreements should be written, should state the parties to the agreement, state the scope and duration of the terms, and should provide for consideration. Consideration is the payment for the use of the name or picture.

rights of authors/copyright owners copying derivative works distribution (including harper & row publishers inc v. nation enterprises and new york times co v. tasini) display performance musical compositions (including synch license) sound recordings compulsory licenses moral rights

COPYING ● The Copyright Act: "'bundle' of rights," incl. the rights to copy the work, create adaptations or derivatives, and perform/show the work (p. 255) ● Rationale: "By prohibiting unauthorized copying, copyright law protects the commercial incentive for authors to produce creative expression that benefits society" (p. 255). ● Music: Rise in sales since 2016 after period of decline (digital piracy, e.g. via YouTube) ● "Fair use": "allows critics, commentators, reviewers, scholars, and others to copy limited portions of copyrighted expression for comment and criticism" (p. 256). ● 2015: New York federal appeals court: Google not liable for scanning millions of books from Library of Congress and university libraries for research (p. 256) → "because Google transformed the original works by creating a new digital search function allowing readers and scholars to find references in books, many of which were out of print or hidden on dusty shelves" (p. 271) → also, the digital scanning "snippets" "did not substitute for the original publications" (p. 271) DERIVATIVE WORKS ● "transformations or adaptations of existing works" (p. 256) ● Derivative works own separate copyrights: "Film producers need their own copyrights in motion pictures based on novels so that they can sue if the film is illegally copied" (p. 256). ● Copyright is divisible: "authors can authorize separate copyrights on any number of derivative works while retaining copyright in the underlying work" (p. 256) → e.g., authors can authorize movie productions of their works, in which the film producer gets a separate copyright, but the author holds the right to license "comic strip characters, T-shirts, and other works derived from the novel" (p. 257) DISTRIBUTION ● "The copyright owner's exclusive right to distribute includes the author's authority to publish, sell, loan, or rent copies of a copyrighted work" (p. 257). ● "Although distribution rights include the right to sell a copy of a work, distribution rights do not include control over resale of a copy. . . . The author receives a royalty on the first sale but not on subsequent sales" (p. 257) → e.g., library does not need permission for every loan or sale of books it purchased ● "The distribution right includes the right to pick the time when, or if, a work will be distributed" → Harper & Row, Publishers, Inc., v. Nation Enterprises: Court ruled that "the Nation violated the copyright held by Harper & Row by publishing several stolen excerpts of Ford's memoirs that were to be published in Time magazine" (p. 258). → Also scooped the most interesting material from the memoirs, costing Time magazine money it would have received from the contract ● Freelance case (New York Times Company v. Tasini): The Court ruled that newspapers and magazines republished in electronic databases infringed freelancers' copyright if they did not grant permission or receive compensation (p. 258) DISPLAY ● "Copyright owners have a right not only to copy, to authorize derivative works, and to distribute copies of their works but also to perform and display their work publicly. To 'display' a work publicly means to show a copy 'either directly or by means of a film, slide, television image' or other device to a substantial number of people beyond the normal circle of friends and acquaintances" (p. 258). ● "Courts have ruled it does not infringe a copyright owner's display rights if one computer links to a website in order for the viewer to see text and images stored there" (p. 258). → e.g., see case of Google transforming the use ("fair use") of thumbnails linking to website PERFORMANCE ● "Composers, playwrights, record companies, and film producers can authorize—or not authorize—public performances and demand royalties" (p. 259). ● Public performance: Live, projected via film/tape, broadcast to audiences, streamed online, or performed otherwise ● "To be a copyright infringement, the work must be performed at public places or transmitted to the public without authorization" (p. 259). ● 2014: the Court ruled that Aereo should've paid fees when it picked up broadcast signals and retransmitted them to homes via the Internet (p. 259) MUSICAL COMPS ● "radio stations, film producers, and others acquire musical performance rights from one of the [three] performing rights organizations" (p. 259) 1. The American Society of Composers, Authors, and Publishers (ASCAP) 2. Broadcast Music, Inc. (BMI) 3. Society of European Stage Authors and Composers (SESAC) ● "The clearinghouses collect the performance fees and distribute them to member composers and copyright holders according to a formula" (p. 259). ● Theater producers (incl. on campuses) "must get copyright clearance to perform copyrighted music in musical reviews and other nondramatic public performances" (p. 259). ● "A filmmaker, television producer, commercial advertising agency, or other creators of audiovisual works must acquire a 'synchronization' license controlled by the music publisher. A 'synch' license allows use of music in a motion picture, television program, commercial advertisement, or music video. Often, the music is timed with—synchronized with—the moving or still visual images in the film or other audiovisual work" (pp. 259-260). SOUND RECORDINGS If a radio station is granted license to play one version of a song, no need for separate performance rights to play different recordings of the same song (p. 260) → "despite long efforts by the record companies—which usually own the performance rights in a recording—and musicians—who sing and play instruments in a recording—to be paid for performance of their sound recordings" (p. 260). ● Producers of audiovisual works (e.g., video games, films, TV shows): Must acquire synch license for merging, or synchronizing, "a musical composition with the pictures and video in the work" (p. 260) as well as to "perform a specific recording" (p. 260) ("master license") COMPULSORY LICENSES ● Webcasters not "serving subscribers" or streaming regularly like a radio station "can stream music under a compulsory license" (p. 258) → "A compulsory license is an exception to copyright allowing the media to perform a copyrighted work without explicit permission as long as the user pays royalties" (pp. 260-261). ● "The time-consuming, costly licensing processes reduces public performances of copyrighted works, thereby diminishing the number of public performances of a work the public might otherwise enjoy and cutting royalties for copyright owners. Therefore, Congress concluded that the public and copyright owners would benefit if the media were guaranteed the ability under a compulsory license to perform some copyrighted works without having to ask permission. In return, the media pay royalties" (p. 261). ● Cable operators: "cannot be refused permission by the copyright owners to retransmit the [local] programs through the cable 'facility,' but the cable company must pay royalties to 'retransmit' the television programs" (p. 261). ● Satellite and wireless companies: "also communication 'facilities' that retransmit television signals to their paying subscribers" (p. 261) ● Internet: not communication facility entitled to compulsory license → must get permission to stream broadcast programming (p. 261) ● Direct broadcast satellites (DBS): Compulsory license to transmit signals to homes not otherwise served by over-the-air television ● Webcasters: Copyrighted digital sound recordings if the system isn't interactive and they don't serve subscribers but instead operates like a radio station → the musicians receive royalties (p. 261) MORAL RIGHTS ● "Works are required to protect artists' and writers' 'moral rights' in their work. Moral rights include the right to be known as the author of one's work and to withdraw a work from distribution" (p. 262). ● Visual Artists Rights Act of 1990: Protects their rights of "attribution and integrity in some paintings, drawings, prints, sculpture, and photographs produced for exhibition" (p. 262). → does not protect moral rights of journalists or news photographers (what does instead: law of publicity, privacy, libel or misappropriation) ● The right of attribution: "gives artists the right to have their names associated with works they create and to prevent use of their names with works they do not create" + to "disassociate themselves from their works if the works have been distorted or mutilated" (p. 262)

false light (including similarities to and differences from libel and embarrassing facts)

Commonalities with libel, private-facts tort, and embarrassing-facts tort ● "In their suit against the Ladies Home Journal, the Gills claimed that the picture, caption, and story not only cast them in a false light but also hurt their reputation for industry, decency, and mortality." ● Similarities with libel: "In libel and false-light litigation, a plaintiff claims to be the victim of falsehood. Defenses are also similar. False-light defendants, like libel defendants, may claim that the plaintiff is not identified by the publication and that the publication is true. ● Differences from libel: "[T]he false-light plaintiff does not sue for lost reputation but, like someone suing over publication of embarrassing facts, is seeking recompense, as the Gills were, for the psychic harms of mental distress and humiliation." ● Similarities with embarrassing-facts tort: Plaintiffs must prove the defamatory remark is widely disseminated (unlike libel: at least one other person besides plaintiff)

matters of public importance (including when government can punish newspapers and the courts suggestions for avoiding doing so) cox broadcasting corp. v. cohn florida v. b.j.f.

Cox Broadcasting Corp. v. Cohn (1975): Information in court records are "'events of legitimate concern to the public'" ● Florida v. B.J.F. (1989): "[T]he Supreme Court extended First Amendment protection to publication of nearly all information dealing with matters of public importance if the information is truthful and lawfully acquired" → "unless prohibiting publication will further a state interest 'of the highest order'" → the Court "reversed a judgment against a weekly Jacksonville newspaper for publishing the full name of B.J.F., a rape victim, in violation of a 1911 state statute" ● Government can punish a newspaper for publishing "lawfully obtained, truthful information about a matter of public significance only if the government can show that punishment is 'narrowly tailored to a state interest of the highest order'" ● "If the government wishes to keep information confidential, the Court said, it should establish stronger safeguards on disclosure, not punish the press." ● Florida v. B.J.F. (1989): The Court ruled for the paper since the FL statute wasn't narrowly tailored → 1. "the categorical nature of the statute's prohibition" → automatic liability of the press regardless of: (a.) whether the victim's name was already public, (b.) whether the publication was offensive to anyone, or (c.) the publisher's motives 2. "it punished only one means of publication: 'instruments of mass communication'" → Other means of dissemination were okay, including verbal communication ● Exception to the Court's ruling in favor of the press: "the media might be punished under a narrowly drawn statute or under common law"

section 230

Criticism from the left and the right + calls for reform or repeal (18 bills in 2020; another 18 in 2021) ● "Efforts by state legislatures to curb Section 230 protections have struggled to overcome the First Amendment, as federal courts halted laws passed in 2021 in both Texas and Florida that would have made online platforms liable for their content moderation decisions and aimed to prevent bans on politicians and speakers who violated their terms of service by spreading health misinformation or false information about the 2020 election that was associated with the January 6, 2021, mob assault on the U.S. Capitol." ● "Entering 2022, the law had been consistently applied as a way to protect online hosts, treating them more as distributors (such as bookstores or newsstands) than publishers of the content their users created and shared on their platforms. However, legislators and even some jurists have signaled that reconsideration of what has been a bedrock of online law in the United States may be coming" "Concurring in a decision dismissing an effort to prevent former president Trump from blocking followers on Twitter, Justice Thomas decried the First Amendment implications of the 'concentrated control of so much speech in the hands of a few private parties' and suggested that tech platforms such as Twitter may be properly treated as common carriers or places of public accommodation, reasoning that such an interpretation might open the door for legislators to place more restrictions or burdens on those platforms. Such efforts have already been made in other countries that allow lawsuits against tech companies for the content they host. Australia's High Court, for example, ruled in 2021 that online hosts could be liable for content posted by users, a decision that led CNN to block Australians from their Facebook pages and several public officials to disable comments on their Facebook pages as well."

highly offensive publications (and related cases, including new york times co v sullivan) distortion fictionalization

DISTORTION "The most common false-light claim against the media is for the distortion resulting when a broadcaster or publisher omits information or uses it out of context." ● Picture of Clarence Arrington used in New York Times article about middle-class Black people, who were framed as "'materialistic, status-conscious and frivolous individuals without any sense of moral obligation to those of their race who are economically less fortunate'" → "Arrington said the cover photo falsely cast him as one of the insensitive, callous blacks discussed in the article." ● "The picture and article about the upward mobility of minorities, a newsworthy social issue, were not sufficiently offensive to allow Arrington to sue, the court said." ● Michigan Court of Appeals upheld ruling re. Eminem, who referred to classmate as a bully, but ruled to not have placed classmate in false light FICTIONALIZATION Second category of false light: "the addition of fictional dialogue or characters to what are otherwise essentially factual works." ● Case of Margaret Cantrell's portrayal in Cleveland Plain Dealer → She sued for invasion of privacy → false light that reporter Joseph Eszterhas falsified, implying she had been interviewed ● Supreme Court majority agreed, ruling that he had placed her in false light with "actual malice" through "'significant misrepresentations'" ● In contrast, ruling on the Hill family portrayal in Life magazine article (1955): the Court in Time, Inc. v. Hill recognized false-light tort but "ruled that plaintiffs, even private plaintiffs like the Hills, must, like public-figure libel plaintiffs, prove New York Times actual malice if they are involved in a newsworthy issue." → [actual malice: "no public official could win damages for libel without proving that the statement was made "with knowledge that it was false or with reckless disregard of whether it was false or not," New York Times Co. v. Sullivan (1964)]

open court records

In 1975, the U.S. Supreme Court created a constitutional right for the media to report information contained in records available in an open courtroom. In Cox Broadcasting Corp. v. Cohn,19 the Court established nearly complete First Amendment protection for the media to report information from official records available in open court. The Court ruled 8-1 that a Georgia father could not bring a privacy suit against a television station for reporting the name of his daughter in violation of a Georgia statute. The statute made publication or broadcast of the name of a rape victim a misdemeanor. The Supreme Court said the First Amendment does not permit a privacy suit against the media for disseminating private information contained in public records that are part of an open court proceeding. "The commission of crime, prosecutions resulting from it, and judicial proceedings arising from the prosecutions," Justice Byron White wrote for the majority, "are without question events of legitimate concern to the public and consequently fall within the responsibility of the press to report the operations of Government." By their very nature, the Court said, public records "are of interest to those concerned with the operation of government, and a public benefit is performed by the reporting of the true contents of the records by the media." Punishing the press for disseminating "offensive" public records "would invite timidity and self-censorship," denying the public important information, White said. If there are matters at a trial that should remain private, the government should not put them in the public domain, White said.

Right to be forgotten

In Europe, "the right to be forgotten," which "allows an individual to ask Internet companies such as Google to remove links to stories or data that name the individual and are 'inadequate, irrelevant, or no longer relevant'"

emotional distress and personal injury intentional infliction physical harm: incitement Physical harm: negligence foreseeable harm

Intentional infliction of emotional stress ● Tort of intentional infliction: occasionally recognized by courts "where 'outrageous' conduct by the media is thought to cause severe anxiety in private persons" → including through negligence, "where the media fail to foresee that members of an audience will emulate violent acts they see or read about" ● Usually attempts to sue media for "intentional infliction of emotional distress" are unsuccessful → 2018 case against Fox News re. coverage of the murder of Seth Rich: "His parents brought claims for intentional infliction for reports that Rich was murdered for leaking sensitive emails from DNC servers to WikiLeaks. The judge held that Fox's reporting was deficient but did "not rise to the level of extreme and outrageous conduct." ● In contrast: "Most recently, in 2019, a Texas judge ordered InfoWars founder and conspiracy theorist Alex Jones to pay legal fees to a parent of a school shooting victim suing Jones for intentional infliction of emotional distress. Jones said repeatedly the 2012 Sandy Hook shooting was a hoax." ● Case between Hustler magazine and Jerry Falwell: Court ruled that "public figures may not successfully sue the media for intentional infliction without proving—as in a libel suit—that they are the subject of a false statement of fact published with New York Times actual malice." → Hustler v. Falwell, 485 U.S. 46 (1988) → grounds for protected satirical speech (e.g., South Park) ● Though Court agreed advertisement was "repugnant," the caricature "contained constitutionally protected ideas and opinions about a public figure" Physical harm: Incitement ● The Court generally rejects claims that "the media should be held liable for negligence, that is, failing to foresee that audience members might hurt themselves or others by copying what they read and hear" ● "The incitement requirement has protected the media not only when members of the audience hurt themselves but also when they hurt others by imitating or copying media violence." ● Interesting case re. Hit Man (a book that a murderer, James Perry, used as a guide) → The Fourth Circuit overturned ruling based on Brandenburg v. Ohio, which said the publisher's book was protected speech, because "although Brandenburg protects 'abstract' teaching, it does not protect the intentional, detailed direction of murderers the court found in Hit Man." Physical harm: Negligence ● "People act negligently if they breach a duty of care owed to the plaintiff and that breach causes injury." ● Plaintiffs have tried to argue that media are negligent by not foreseeing violent publications/programs could inspire readers/viewers to harm themselves or others → "Courts, however, generally hold the media owe no duty of care under the common law of negligence to a general audience, either for physical harms or for financial losses." ● Examples: Osbourne case in CA, music prompting suicide → Osbourne and CBS: "no relationship with the public creating a duty to prevent harm"; second case: investor lost money after buying bonds on mistaken news report Foreseeable harms Occasionally, media held responsible (1) Eleventh Circuit upheld verdict that found Soldier of Fortune magazine "liable for negligently publishing an advertisement that resulted in a contract killing" → the magazine should have identified unreasonable risk of harm → Practical takeaway: "a publisher could be held liable only if an advertisement on its face, without further investigation, would alert a reasonably prudent publisher to the unreasonable risk" (2) Another commercial case: A radio station promotion prompted dangerous driving among teen drivers, resulting in a death (3) Case of Sandra Hyde: Newspaper found liable for publishing story about her escape from an abductor who had not yet been caught

inventions & writings

Inventions & Writings ● "Article I, Section 8, recognizes two kinds of intellectual property: inventions and writings" (p. 246). ● Inventions: "protected under patent law, which provides inventors up to 20 years in which to enjoy exclusive commercial exploitation of the machines, processes, manufactured products, and designs they create" (p. 246). ● Writings: "which include books, poems, screen plays, songs, and DVDs, are protected by the federal copyright statute, the primary subject of this chapter" (p. 246).

the libel plaintiff living individuals organizations government

Living Individuals "The right to sue for damage to reputation dies with each individual. [...] However, a relative may be able to continue a libel suit filed by an individual who dies before the suit is conducted." Organizations "A business can sue for defamatory false stories about business practices, such as financial mismanagement or attempts to deceive the public through advertising." Government ● "Units of government cannot sue for criticism of governmental conduct." ● "The U.S. Supreme Court implicitly has endorsed the Illinois Supreme Court's rejection in 1923 of a libel suit by the City of Chicago. [...] The City of Chicago had sued the Chicago Tribune for printing that the city was 'broke,' its 'credit was shot to pieces,' and bankruptcy for the city was 'just around the corner.'" ● "The fact that government cannot be libeled should not encourage careless statements about government. Besides, government employees can sue as individuals if they are defamed."

commercialization and media promotion

Media Promotion Courts have consistently ruled that it is not an appropriation for publishers and broadcasters to promote the media's own publications and programs with advertisements containing previously published or broadcast news and photos. In one well-known case, Holiday magazine successfully defended itself against an appropriation suit brought when the magazine advertised itself with previously published pictures of actress Shirley Booth. Incidental use exception to the appropriation law, driven by "'the First Amendment interest in protecting the ability of news disseminators to publicize, to make public, their own communications'" (based on case re. book publisher advertising picture of author of a competing book)

five branches of privacy law private facts intrusion and trespass false light commercialization emotional distress and personal injury

PRIVATE FACTS "Relatively few courts have found publication of private information sufficiently offensive and sufficiently lacking in newsworthiness to justify punishing the media. The Supreme Court has further diminished successful suits against the media by establishing a nearly impermeable right for the media to publish truthful information if the information is lawfully acquired—usually from public records and public officials—and the information involves an issue of public importance." "Unlike a libel plaintiff, the private-facts plaintiff does not sue for lost reputation resulting from false statements. Successful private-facts plaintiffs sue over publication of truthful information that is so intimate that revelation robs them of a part of their personality. Truth, therefore, is not a defense in private-facts cases. The successful private-facts plaintiff sues for shame, humiliation, and mental anguish." "Also, unlike libel, the publication of private facts is usually a tort only if dissemination is widespread. A defamation plaintiff can sue if a defamatory statement is communicated to one other person, but a private-facts plaintiff must usually show that a wide audience was exposed to the publication."

Voluntary Disclosure

People have no privacy claim if they willingly disclose private information about themselves on blogs, Facebook, Twitter or other media. People who post their own photos of drinking or disrobing consent to public disclosure. Personal information made available beyond "friends only" may be further disseminated by Google and other websites. A federal judge dismissed the First Amendment suit of a Pennsylvania university student who was denied teaching certification after she posted a picture of herself online sipping alcohol over the caption "Drunken Pirate." She was a student teacher at the time at a Pennsylvania high school. The university granted the student an English degree but denied a degree in education because of the photo and what the university said was other unprofessional conduct.20

defenses the first amendment newsworthiness

THE FIRST AMENDMENT Only publicity case on which Court has ruled: Held that "the First Amendment does not protect the media from appropriation suits if the media appropriate an entertainer's entire act" ● News program broadcast entire human cannonball act (Zacchini v. Scripps-Howard) → threat to performer's economic well-being since people might not pay to see act in person An important defense in publicity cases is the First Amendment right to disseminate and discuss information of public importance. The Utah Supreme Court ruled that the First Amendment protected a U.S. senator from a publicity suit when he published constituents' pictures in campaign literature. Postal workers who posed with Senator Orrin Hatch said the picture reproduced in reelection literature constituted an implicit endorsement of the senator, which they did not intend and which they said violated their publicity rights. But the Utah court ruled that the campaign literature was newsworthy information protected by the First Amendment. The court said persons who pose with, or inadvertently appear with, public officials or candidates may not claim their identity has been appropriated if the picture is taken in a public or semipublic place.168 NEWSWORTHINESS ● Traditional common law defense in commercialization cases: "The fact that the media are commercial enterprises motivated by profit and supported by advertising does not diminish the newsworthiness of the items they publish and broadcast." ● "Events may be newsworthy even if they are commercially sponsored." → e.g. Elvis Presley press conference, recorded and republished in Current Audio magazine → RCA said "the extensive coverage of the conference, including the voice recording, violated the company's exclusive contract with Presley." ● New York pedestrian Jeffrey Lemerond not supported by federal appellate court in suing Borat for appropriating his identity for the trailer (even with his identity blurred) → film → newsworthiness exception The traditional defense at common law in commercialization cases is newsworthiness. Newsworthiness is a broad defense in appropriation cases as it is in private-facts cases. Publication or broadcast of names and pictures in news reports of political, social and entertainment events are not commercial appropriations. The fact that the media are commercial enterprises motivated by profit and supported by advertising does not diminish the newsworthiness of the items they publish and broadcast. "It is the content of an article or picture, not the media's motive to increase circulation, which determines whether an item is newsworthy," the New York Court of Appeals has said.171 The picture on the cover of a book or magazine is newsworthy if the subject is a newsworthy event or is reasonably related to a newsworthy subject inside the publication. New York magazine won an appropriation suit brought by Duncan Murray after the magazine published a cover photo of Murray at the city's St. Patrick's Day parade. In a picture taken by a freelance photographer, Murray was dressed in the "striking attire" of an Irish hat, a green bow tie and a green pin. The New York Court of Appeals said the picture was newsworthy because Murray participated in "an event of public interest to many New Yorkers." Furthermore, the picture was related to a newsworthy article on Irish immigrants in the magazine.

unfair competition

The act of competing with another not to make a profit but for the sole purpose of driving that other out of business. "[C]opyright does not protect the property value in signs, titles, names, and slogans that businesses use to differentiate themselves" (p. 280). "Unfair competition now has a broader consumer orientation, encompassing several commercial practices that confuse or mislead the consumer" (p. 281). "False advertising is discussed in the chapter on advertising. Theft of trade secrets is treated in the chapter about access to government records. Misappropriation and trademark infringement are discussed here" (p. 281).

Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

historical roots of five branches

Twentieth-century development, but dates back to 1890 article in Harvard Law Review by Samuel Warren and Louis Brandeis, who "argued that a right of privacy is rooted in the dignity of the individual, a dignity then recognized in the law of trespass and copyright." ● "Broadly speaking, the Constitution protects from government intrusion in places and personal effects in which a citizen has a 'reasonable expectation of privacy.'" → the constitutional right: cultivated through Court decisions ● Common law or statutes → "spatial or physical privacy" → "snooping, peeping, and secret electronic and photographic surveillance" ● "In many states, privacy law also includes the right to be portrayed accurately in the media and the right to prohibit the unauthorized commercial exploitation of one's name or picture in advertising and public relations." ● General Data Protection Regulation (GDPR), "a set of privacy regulations that applies to any organization worldwide that serves European Union residents and collects data about them," requiring advance consent from users to extract data via ads or analytics "'[The GDPR] is a major piece of EU legislation' that 'will have the greatest impact on technology companies and advertising networks that directly monetize user data,' along with 'the media companies that often depend on them for both reach and revenue'"→ (McGregor & Zylberberg, 2018).

Criteria for privacy protection from media publication highly offensive (must prove)

lacking newsworthiness not lawfully acquired widespread dissemination and exposure

slander

the action or crime of making a false spoken statement damaging to a person's reputation.

highly offensive disclosure of private information (Dorothy barber)

● "Because offensiveness is a jury question, what constitutes a highly offensive revelation of private facts varies from community to community." ● Missouri Supreme Court: Ruled that Time magazine invaded the privacy of Dorothy Barber and her "unusual eating disorder" → "The Missouri court said the public could be told of Barber's newsworthy disease without the embarrassing revelation of her identity." ● "Public revelations of children, particularly about their medical treatment, may also invade privacy."

work for hire -> conditions surrounding this concept

● "Copyright belongs to the 'author' of a work" (p. 252). ● Works made for hire: ○ "the 'author'—who owns the copyright—is the party who hires an employee or commissions a freelancer to create a work. A work made for hire is either (1) 'a work prepared by an employee within the scope of his or her employment' or (2) 'a work specially ordered or commissioned' that falls within one of nine specified categories" (p. 253). → e.g., freelance contributions to magazines ○ Rationale: "All rights in works for hire belong to the employer on the theory that the company should own the copyright if the company assigns the task, risks the resources to carry it out, and directs the work of the creator" (p. 253). ○ "Even an article written in off-hours may be work for hire if the article is the direct result of one's employment" (p. 253). → see case re. Miles Laboratories + scientific article ● Supreme Court (Community for Creative Non-Violence v. Reid): "independent contractors are not considered employees unless they meet several criteria of employment such as being supervised, being provided a place to work, receiving fringe benefits, and having a long-term, salaried relationship with an employer" (p. 253). ● Practical takeaway for freelancers in media jobs: they "create a work for hire only if both parties 'expressly agree' in a written contract that 'the work shall be considered a work made for hire'" (p. 253). → without this phrase, work for hire, photographers/writers are only granting permission for one-time publication ● "[P]ublishers sometimes demand freelancers transfer copyright to the publisher without signing a work-for-hire contract" (p. 254) → freelancers can negotiate the return of copyright after 35 years ● "[G]overnment employees own the copyright in speeches and writings composed on their own time" (p. 254). ● "State executive, legislative and judicial branches may not copyright their statutes, judicialopinionsorregulations""[I]n2020theSupremeC

copyright protection (including eldred v. ashcroft: years and conditions) copyright notices registration: actual vs. statutory damages

● "Copyright protection for works created after 1977 lasts for the life of the author plus 70 years. The benefit of copyright, therefore, can be willed to one's survivors for 70 years after the death of the copyright holder. If a company is the copyright holder, copyright runs for 120 years from the date of creation or 95 years from the date of publication, whichever is shorter" (p. 250). ● Supreme Court (Eldred v. Ashcroft (2003)): "Congress did not exceed its authority when it lengthened the term of copyright by 20 years to 70 years after the life of the author" → Justice Ruth Bader Ginsburg (RBG): "the Constitution did not set a specific duration for copyright terms when it provided for 'limited' terms," and she "rejected the argument that Congress unconstitutionally establishes a perpetual copyright" (p. 251). Notice, Registration, and Deposit (cont.) ● RBG also "rejected arguments that an extended copyright term violates the First Amendment by excessively delaying the time at which copyrighted works pass into the public domain and can be incorporated into new expressive creations. Ginsburg noted that copyright does not prohibit creators from disseminating ideas and facts contained in copyrighted works" (p. 251). ● RBG: "the fair use defense . . . permits commentators and scholars to publish limited portions of copyrighted works without permission for purposes of discussing and criticizing the original work" (p. 251) ● Supporters of copyright term extension: it "encourage[s] original and often-expensive creative expression by allowing long-term financial incentives" (p. 251) NOTICES ● "Although authors are not required to protect copyright, they should place copyright notices on their works and register them" (p. 251). → Copyright Office in DC ● copyright notices: "the voluntary sign attached to a work warning would-be copiers that they need permission to reproduce that work" (p. 251) → (1) © or "copyright" or "copr." + (2) year of first publication + (3) name of the copyright owner ● "Copyright notice on a periodical, anthology, slide show, or other collective work covers all contributions to the work except for advertisements inserted on behalf of outside businesses or organizations" (p. 251). → e.g., copyright notice on New York Times covers staff as well as freelance writers and photographers (though the latter may hold separate copyright of their work, and attach separate copyright notice) → does not cover advertisements REGISTRATION AND DEPOSIT ● Registration: Establishes who first created a disputed work → "The person who first registers a work has strong legal evidence of copyright ownership" (p. 252) ● "Although unregistered works are protected under the copyright law, the law includes incentives for authors to register their works" (p. 252). ● Sue for infringement/for "actual damages": Once a work is registered ("lost sales and for profits the infringer illegally gained") (p. 252) ● "If a copyright owner registered the work before the infringement took place, he or she can seek 'statutory' damages instead of actual damages" → "without proof of financial damages" → Between $750-$30,000 per work, and up to $150,000 if infringed "willfully" (p. 252)

copyrightable works burrow-giles lithographic co. v. sarony compilation collective work derivative work what doesn't receive protection

● "Copyright subsists in 'original works of authorship fixed in any tangible medium of expression . . . from which they can be perceived, reproduced, or otherwise communicated.' Copyrightable works of authorship include literary, musical, dramatic, audiovisual, pictorial, graphic, and sculptural works. Literary works include books, newspapers, magazines, corporate house organs, newsletters, annual reports, and computer programs" (p. 247). ● "To be original, a work need not be unique, novel, or good. Rather, the work must be created independently—not copied from another work—with a modicum of intellectual effort" (p. 247). ● "A work is fixed in a tangible medium of expression as soon as it is created or recorded so that it can be perceived" (p. 248). Copyright protects expression, not the ideas or facts (p. 248): An author owns the copyright in a review of a Pink concert but not in the idea of writing the review or in the facts within it" (p. 248). → Borrowing without attribution = plagiarism: "But borrowing of facts and ideas does not violate the first author's copyright. Copyright infringement occurs when an author copies the expression of another without permission or a privilege to copy. Copying an author's copyrighted words, music, or other expression without permission infringes copyright in the original work even if the copier acknowledges the source of the expression" (p. 248). ● Supreme Court (Burrow-Giles Lithographic Co. v. Sarony (1884), re. photograph of Oscar Wilde): Photographs are protected "writings" (p. 248) ● → "The Court rejected the argument that a photograph is a mere mechanical reproduction requiring no originality and therefore no authorship. On the contrary, the Court said, Sarony gave visible form to his original mental conception by posing Wilde . . . thereby evoking the desired expression" (p. 248). ● Advertisers: Granted copyright protection, "not for the choice of a particular actor or a special editing technique, but for the expression resulting from a combination of artistic choices, including the selection of actors, the composition of each frame, the pace of editing, camera angles, hairstyle, jewelry, decor, and makeup" (p. 248). COMPILATION, DERIVATIVE WORK, COLLECTIVE WORK ● "Copyright is recognized not only for individual stories, photos, and programs but also for compilations and derivative works" (p. 248). ○ Compilation: "a work formed by collecting and assembling preexisting materials or data that are 'selected, coordinated, or arranged in such a way' as to create a new original work. A compilation may be the assembly of discrete facts that, individually, would not be copyrightable" (pp. 248-249) → e.g., trivia dictionaries, databases, stock lists (p. 249) → not a telephone directory (see: Feist Publications, Inc., v. Telephone Services Company), but U.S. Court of Appeals for the Eleventh Circuit supported the case for the Yellow Pages (p. 249) ○ Collective work: "a gathering of preexisting works that may already be copyrighted" (p. 247) → e.g., magazines, anthologies, corporate reports → "The publisher of a magazine or anthology must have permission from the individual copyright holders to compile the collective work" (p. 250). ○ Derivative work: "a transformation or adaptation of an existing work" (p. 250) → e.g., translations, movie adaptations, dolls based on cartoon characters WHAT DOES NOT RECEIVE PROTECTION (p. 250) ○ "facts, procedures, and processes" ○ "systems, methods of operation, concepts, principles, and discoveries" ○ "the user interface—the system of menus and commands—in popular spreadsheet software" ○ "useful items such as tables, chairs, and typefaces" ○ "formats and layouts . . . because the number of ways in which stories, pictures, and type can be placed on a page is too limited to allow one person or company to claim exclusive ownership" (p. 250) ■ formats: "the general plan or organization of a work, the shape and size of a publication, the length of a broadcast, or the number of minutes of music to be included at a certain time each week in a television show" ■ layouts: "the plan or arrangement of elements on the page"

trademarks: dilution

● "Even if use of a trademark would not deceive or confuse the public, a use might be prohibited if it would tarnish or dilute the value of a mark" (p. 288). → e.g., example of "enjoy cocaine" poster using Coca-Cola colors and script: "[T]he court said consumers might be offended in their mistaken belief that the Coca-Cola Company treated a dangerous drug humorously" (p. 288). → not a question of conflating the two products ● New cases: Using trademarks (unauthorized) as Internet domain names (e.g., candyland.com → "sexually explicit website") (p. 288) ● Anticybersquatting Consumer Protection Act of 1999: To prevent people from registering domain names of common trademarks and selling them back by making them liable for doing so (p. 289

infringement (including two conditions for proving copying)

● "Halting [the distribution of a copy guilty of] a copyright infringement is viewed by the courts as a protection of property interest rather than an interference with free speech" (p. 263). ● → "Typically, a plaintiff has no witnesses to testify to the copying. Lacking direct evidence, copyright owners can nevertheless prove copying by showing that the defendant had [1] reasonable access to the copyrighted work and that the alleged copy is [2] substantially similar to the original" (p. 263). ● "In determining substantial similarity, courts often examine whether the underlying ideas and the manner of expression are similar in the two works" (p. 264).

trademarks: first amendment

● "If a trademark is used in an unauthorized comedy, parody, or criticism, the use may be protected by the First Amendment" (p. 286). → e.g., when Spy magazine published a parody of Cliff's Notes ● Disparaging trademarks: Federal appeals court in 2015 ruled in favor of an Asian band, "The Slants," trying to register a trademark → "The appeals court held, and the Supreme Court affirmed in 2017, that the PTO violated the First Amendment when it denied trademark registration for The Slants because it was said to be 'disparaging'" (p. 287) → deemed viewpoint discrimination ● "The Lanham Act permits the PTO to deny registration to marks that disparage, slight or are scandalous or deceptive. A company or group whose trademark is denied registration can continue to use the mark, but registration creates legal benefits" (p. 287). "Most recently, in 2019, the Supreme Court ruled in Iancu v. Brunetti that the Lanham Act's prohibition against registration of 'immoral or scandalous' trademarks violated the First Amendment. The respondent, Erik Brunetti, was an artist who founded a clothing line using the trademark FUCT. Brunetti said the mark is pronounced as four letters, but the PTO read it differently and decided that the mark was 'highly offensive' and 'vulgar' and that it had 'decidedly negative sexual connotations.' The Supreme Court, citing Matal v. Tam, held that the "immoral or scandalous" clause, like the disparagement clause, discriminated improperly on the basis of viewpoint" (pp. 287-288).

safe harbors

● "If, like a common carrier, a service provider merely transmits information but does not select or alter the content or choose the recipients, the provider will not have to pay the copyright owner monetary damages for the infringements of others. The provider is also exempt from monetary liability for the temporary storage or 'caching' of information" (p. 267). ● "To maintain their safe harbors, Internet Service Providers must implement reasonable policies to prevent postings by repeat infringers, designate an agent to receive notices of infringement and create standard technical measures to detect infringements" (p. 267). ● "In the U.S., the safe harbors of the Digital Millennium Copyright Act protect Internet companies of various kinds against the possibility of massive copyright infringement damages when one of their users copies creative work illegally. In return for that protection, Internet companies have to take some concrete steps, like adopting and enforcing a repeat infringer policy" (https://www.eff.org/deeplinks/2019/01/copyrights-safe-harbors-preserve-what-we-love-about-internet). ● "The party claiming copyright violation can then sue the party posting the materials, but not the Internet Service Provider" (p. 268). ● "Providers could lose their safe harbor if they have actual knowledge, or 'red flag' knowledge, of infringement. But it is difficult for an ISP to become liable for illegally posted copyrighted materials" (p. 268). ● 2013: YouTube "had no obligation to look for materials that might infringe copyright. YouTube had a responsibility to take down materials only if YouTube 'had been told of specific infringing materials'" (p. 268). ● 2016: Vimeo didn't have "red flag" knowledge of infringement on its site "even though an employee had heard all of an illegally posted song contained in a video" (p. 268). → employees weren't obligated to be well-versed in copyright law ● 2016: "a copyright owner should consider whether a posting is a fair use when the copyright owner is making its 'good faith' claim of copyright infringement in its take-down notice" (p. 268)

identification (2 of 6 categories required to prove libel)

● "Libel plaintiffs, in addition to establishing that an expression is defamatory, must also prove that the defamatory language is about them individually." ● Identifying individuals: "Many libel suits involve the inadvertent naming of the wrong person. A careless police reporter can erroneously copy the name 'Adams' instead of 'Adamson' from police records. Or a reporter might use the wrong middle initial or address." → e.g., review Liquori case: "The Liquori case demonstrates that checking identification in one place is not always enough. The case also demonstrates the importance of a thorough identification." → identify story subjects with: full name, incl. middle initial; address; and occupation + possibly age ● Group libel: "Because defamation is a matter of personal reputation, large groups—such as union members, doctors, Republicans, or Mexican Americans—cannot usually sue successfully for libel over comments made about their group. [...] The courts consistently rule that people belonging to groups of more than one hundred members cannot claim that defamatory comments about the group as a whole are 'of and concerning' them individually."

publication

● "Libel plaintiffs, in addition to proving that defamatory language identifies them, must prove that the libel is communicated to someone beyond the defamed. The publication of defamation, in the legal sense, requires at least three persons—the person uttering or publishing the defamation, the person being defamed, and a person hearing or seeing the defamation." ● "Communicators are usually liable for reporting, or republishing, defamation if the defamation does not have an official government source." ● "In the United States, Twitter users are liable for their defamatory tweets, but Twitter and other Internet Service Providers are not liable for defamatory posts on their sites because of Section 230 of the Communications Decency Act of 1996." → but not retweets in the US (vs. in the UK) ● "Publishing companies and broadcasters are responsible for libel because their employees select, write, edit, and distribute information to the public. With the publishers' control of content comes liability for defamation. Thus, common carriers, such as telephone companies and some microwave system operators, are not responsible for libelous messages because they typically exercise no control over the information they transmit." ● Online publishers: "Courts have established Section 230 as a strong shield against liability for online services and social media platforms in libel cases, ruling consistently that such Internet Service Providers are not responsible for the acts of their users." ● "This does not mean that social media posts will be entirely immune from liability, even if they are based in the original post. If the post is made and adds new information, that may amount to a separate publication." → e.g., see example of Joy Reid posting photo with false caption on Instagram (after retweeting, which was protected) ● "While this broad shield against liability has allowed anonymous gossip sites and apps such as The Dirty and YikYak to survive, at least temporarily, it has also provided freedom for online developers and companies such as Google and Facebook to grow without the threat of constant litigation." ● Foreign jurisdictions: "Foreign courts—particularly British courts—sometimes hold American journalists and authors liable for publishing defamation even though the same publication would not be punishable in the United States." ● "To combat 'libel tourism,' President Obama in 2010 signed the SPEECH Act, a law that prohibits federal courts from enforcing libel judgments that the First Amendment would not allow in U.S. courts, including judgments that do not require public officials or public figures to prove actual malice as an element of their libel claims."

criminal libel and civil libel

● "Most early libel law was criminal law. Governments adopted criminal libel statutes to prevent breaches of the peace and punish criticism of government. [...] In the 20th and 21st centuries, most libel cases in the United States are civil suits." ● "The move away from criminal libel has come in spite of a 1952 Supreme Court opinion, Beauharnais v. Illinois, in which a divided Court upheld an Illinois statute that criminalized any publication that 'portrays depravity, criminality, unchastity, or lack of virtue in any class of citizens of any race, color, creed, or religion.'" ● "Although Beauharnais never has been overturned, the decision has been eclipsed by more recent decisions abandoning breach of the peace as a justification for libel convictions. [...] Under current law, a libel plaintiff must establish that he or she was identified individually." → ethnic and racial slurs ≠ libel Criminal Libel and Civil Libel (cont.) ● "In addition, the Supreme Court has ruled unconstitutional a state statute punishing speech that tends to breach the peace, thus knocking out an important rationale for criminal libel prosecutions." —> Ashton v. Kentucky ● "Not only has the Supreme Court undermined criminal libel by finding breach-of-the-peace laws unconstitutionally vague, but the Court has also ruled that criminal prosecutions for criticism of the public conduct of public officials are unconstitutional unless the publication is false and made knowingly or recklessly." Criminal ● "Although criticism of public officials is almost never criminal, about a dozen states still permitted criminal libel prosecutions as of 2020, though these laws had been on the decline across the country." ● "However, a federal judge in 2021 upheld New Hampshire's criminal libel law against a challenge that it was unconstitutionally overbroad and vague, brought by a man who had twice been charged for criminal defamation for online posts he made about a fitness coach on Craigslist and a police officer he accused of corruption in the comments section of a newspaper article."

fault (4 of 6 categories required to prove libel) the zenger trial the alien and sedation acts new york times v. sullivan new york times actual malice (reckless disregard for the truth, knowing falsehood, inquiry into a journalists mind) extending new york times to public figures other limited public figures fault for private persons negligence wire service and live transmissions

● "Public officials and public figures have the heavy burden of establishing that the media published defamation knowing that their story was false or that they recklessly disregarded the truth." ● "The burden of proof for private persons suing for libel depends on state law. Most states require that private persons prove the publisher acted negligently, which is much easier to prove than proving knowing falsehood or reckless disregard for the truth." SEDITIOUS LIBEL IN US ● Partisan press: Political or commercial ● Pennsylvania Gazette (1729): Operated by Benjamin Franklin; run with subsidies from political parties as well as advertising ● New-York Weekly Journal (1733) ● Owner arrested for seditious libel: defaming the government, causing people to rebel against the state/authority ● Zenger trial (1735) debated the right of the press to "truthfully criticize public officials," (prefiguring the First Amendment) ● Jury ruled in his favor, as long as stories were true, but did not change the law → the Alien and Sedition Acts in 1798 still passed after the Bill of Rights (1791) ALIEN AND SEDITION ACTS ● Federalists adopted these acts "to punish their Republican critics, led by Thomas Jefferson" → prosecuting over a dozen people under the Sedition Act, including newspaper editors and writers ● Alien Act: "allowed the president to deport anyone not born in the United States who was 'dangerous to the peace' or suspected of 'secret machinations against the government'" ● Sedition Act: "prohibited any conspiracy to oppose the government and 'any false, scandalous and malicious writing' against the government or government officials" ● Historian Leonard Levy: Conventional understanding of freedom of the press at this time (freedom from prior restraint, not from punishment for publishing "'improper, mischievous, or illegal'" words) NEW YORK TIMES V. SULLIVAN (1964) ● New York Times v. Sullivan (1964): Strict liability ("responsibility regardless of the intent of the publisher") when media defame a public official was ruled unconstitutional → "[S]ome false statements must be protected by the First Amendment in political debate if freedom of expression is to have the 'breathing space' needed to flourish." ● New York Times v. Sullivan (1964): Sullivan (AL police official) sued the New York Times for publishing an advertisement purchased by civil rights activists, which said that protestors were facing "'an unprecedented wave of terror'" → The ad contained several (mostly minor) inaccuracies New York Times v. Sullivan (1964) ● The U.S. Supreme Court reversed the decision of the Supreme Court of Alabama, which held the New York Times accountable (due to strict liability that newspapers were liable for defamation regardless of intent/care, at that time) ● Justice William Brennan, Jr., argued that Alabama's libel law "did not adequately safeguard freedom of speech and press as required by the First and the Fourteenth Amendments" ● Further argued the ad was not entirely commercial speech but "political speech that 'communicated information, expressed opinion, recited grievances and sought financial support' on behalf of a cause 'of the highest public concern'" ● Impact of the case: Public officials "must shoulder the heavy responsibility of proving published statements about them are false and defamatory" and "with 'actual malice'" ● "To prove New York Times actual malice, an official has to establish that a defendant published the statement either (1) knowing it was false or (2) exercising reckless disregard for truth." → the Court ruled it was not published with actual malice → though possibly evidence of negligence, "it did not demonstrate recklessness" ● Case determined that public officials must prove actual malice, "but the Court did not define public official or official conduct" → Today, can include elected officials as well as non-elected government employees EXTENDING NEW YORK TIMES TO PUBLIC FIGURES ● 1967: the Court extended New York Times actual malice to public figures ● 1974: Private libel plaintiffs did not have to prove New York Times actual malice but did have to "prove that a libelous publication was published with fault" → public figures: "heavier burdens of proof" who have "access to 'channels of effective communication' so that they can counteract false statements about them" ○ Elena Gertz, Chicago-based civil rights attorney, libeled by American Opinion (magazine), accused of participating in a conspiracy to replace local law enforcement with a national Communist police force ○ Trial and appeals court said she had to prove AO published the defamation with New York Times actual malice → Supreme Court reversed these decisions, deeming her a private person, and defining two kinds of public figures: (1) all-purpose, and (2) "limited," or "vortex" (would only prove New York Times actual malice for public controversies they voluntarily injected themselves into) → see: three criteria for limited/vortex status: (1) involves a public controversy, (2) voluntary participation, (3) attempt to affect the outcome (i.e., receiving funding [Hutchinson v. Proxmire] or involvement in a criminal proceeding [Wolston v. Reader's Digest Ass'n] ● "Businesspeople do not ordinarily become public figures simply because their business practices or products are criticized, even if they respond to the charges. [...] However, business or businesspeople may become public figures if they initiate aggressive advertising or public relations campaigns related to controversial issues." ● "Courts regularly conclude that political candidates are public figures if defamatory comments are made about their candidacies." ● "Courts usually decide that people who voluntarily try to change the minds of others about public issues are limited public figures." OTHER LIMITED PUBLIC FIGURES ● "Besides recognizing the all-purpose public figure and the vortex figure, some courts confer limited public figure status on entertainers, athletes, and others who attract attention because of visible careers. [...] Nevertheless, many lower courts believe those who seek public attention during their careers ought to have to prove New York Times actual malice for the limited purpose of defamation about their public performances." ● "In the absence of Supreme Court direction, several lower courts have said that public figures do not lose their public figure status with a lapse of time" → at least in terms of the original libel issue/s NEW YORK TIMES ACTUAL MALICE ● "Once a court decides that a person is a public official, a public figure, or a private person, the focus of the libel case turns to the question of fault, that is, whether communicators published the alleged libel carelessly or maliciously. [...] Public officials and public figures must prove New York Times actual malice: that the publisher knew the publication was false or published it with reckless disregard for the truth." ● Ways public officials & figures try to prove New York Times actual malice: 1. Reckless disregard for the truth 2. Knowing falsehood 3. Inquiry into a journalist's mind RECKLESS DISREGARD FOR THE TRUTH ● Most likely attempt by public officials and figures to prove public communicators are guilty of New York Times actual malice → "The courts ask whether a journalist adequately investigated a story given the time available. The courts consider whether the reporter chose reliable sources, ignored warnings that the story was wrong, or disregarded inconsistencies." ● Ohio case: the Hamilton (Ohio) Journal News "deliberately evaded the truth" by relying on "a highly questionable source" and failing to "investigate contradictions before publishing a front-page story charging a judicial candidate with planning blackmail and promising favors for help in smearing his opponent" ● Another case involving the Saturday Evening Post, which "failed to interview witnesses or view game films" while not under pressure KNOWING FALSEHOOD ● "Potent evidence of knowing falsehood is fabrication—a journalist who makes up a story knowing it is false." ● Cantrell v. Forest City Publishing Co.: the case in which a reporter fabricated an interview with Margaret Cantrell, quoting her in his story ● Re. inaccurate quotes (Masson v. New Yorker): "[T]he Court noted that minor inaccuracies do not amount to falsity as long as 'the substance, the gist, the sting, of the libelous charge be justified.' [...] Only if the alterations add significantly to defamatory meaning would the alterations constitute knowing falsehood." INQUIRY INTO A JOURNALISTS MIND ● "The need to prove knowing falsehood or a 'high degree of awareness' of the probable falsity encourages plaintiffs' lawyers to examine the thought processes, or 'the state of mind,' of journalists." → questions for writers and editors about believing sources and the story, asking for more documentation, or deciding on what to publish ● "Many journalists argue that detailed examinations of news decisions violate the First Amendment by interfering with editorial processes." ● Herbert v. Lando (in which Court said producer for 60 Minutes could be asked about evaluating segment on Colonel Anthony Herbert) → Justice Byron White: "rejected the argument that investigations into the journalist's state of mind would have 'an intolerable chilling effect' on editorial decision making. He contended that the media have a self-interest in taking any necessary precautions, including a 'frank interchange of fact and opinion,' to avoid publishing a knowing falsehood or reckless error." FAULT FOR PRIVATE PERSONS ● "When the law holds the media to strict liability, publishers are automatically liable if they defame a private person, even if the media observe normal journalistic practices." ● "All plaintiffs, public or private, must prove actual malice to collect punitive damages, but the Court in Gertz said the states may decide what level of fault private libel plaintiffs must meet to collect general damages. Four states [Alaska, Colorado, Indiana, and New Jersey] require private persons involved in matters of public interest to prove actual malice, the same high standard that public officials and public figures must meet." NEGLIGENCE ● "the fault requirement most states have adopted for private persons suing for libel" → "a failure to act as a reasonable person would in similar circumstances," e.g., "whether a writer exercised reasonable care in determining whether a story was true or false" ● Negligence: (1) average person standard: "the failure to do what 'a reasonably prudent person' would do," (2) professional standard: "a failure to be as careful as an ordinarily prudent person in the same occupation" ● "A single lapse in generally accepted reporting practices may constitute negligence while it probably would not constitute actual malice. [...] One academic study reported that juries are likely to decide a journalist is negligent if they determine the journalist failed to verify information through the best available sources." ● Practical takeaway: "A journalist who contacts the persons directly affected by a story and checks information carefully with sources known to be reliable will not ordinarily be found negligent, even if a story is false." WIRE SERVICES AND LIVE TRANSMISSIONS "More than a century ago, serial libel plaintiffs would travel from town to town, filing lawsuits against local newspapers that had picked up a story off of a wire service that turned out to be defamatory. Perhaps most famous among these was the entertainer Annie Oakley, a Western sharpshooter who performed for Buffalo Bill's Wild West Show. An Associated Press news report out of Chicago in 1903 said Oakley had been arrested for stealing a man's trousers to help her buy cocaine. The report turned out to be false; the woman in question was actually an Oakley impersonator who went by the name 'Any O'Klay.' Oakley brought 55 lawsuits against newspapers that published the story, winning most of them for sums totaling tens of thousands of dollars. But courts and legislatures started to realize the flaws of allowing this kind of serial litigious behavior for one mistake that was repeated unknowingly by subscribers to a news wire. This resulted in the development of the 'wire service' defense. ● "Courts in several states have held the media are ordinarily not negligent if they publish defamatory wire service stories without checking facts in the stories." ● "The Massachusetts Supreme Judicial Court, affirming the judgment of the trial court, said that the media's 'reasonable reliance' on stories obtained from a 'reputable wire service' was not negligence. [...] The Massachusetts court did not, however, indicate that newspapers and broadcast stations could always rely on wire service copy without checking it.

trademarks: infringement

● "The purpose of a trademark is to protect consumers from being misled about the source of goods or services. When one company infringes the trademark of another, it confuses the consumer. In deciding whether a trademark has been infringed, courts consider such things as the strength of the marks, the similarity in appearance of the products, the meaning of the marks, the kinds of goods in question, and the intention of the defendant in using the mark" (p. 285). ● Example: "The Washington Post, CNN, and other media stopped a company from 'framing' their web pages in a manner that the media companies said infringed their trademarks" (p. 286)

trademarks: inherently distinctive remarks

● "To be registered, either a mark must be inherently distinctive or it must be a descriptive mark that has acquired a 'secondary meaning'" (p. 284). ● Words that describe the function/use/size/quality of goods, or names that are descriptive, cannot be trademarked.

trademarks: registration

● "Trademark and service mark rights are created through adoption and use on goods in trade. Unlike copyright and patent, trademark does not depend on originality, invention, or discovery, although a company's trademark may indeed embody imagination. Owners of trademarks and service marks are given exclusive use of their marks because of their marks' distinctiveness" (p. 283). ● Federal registration: Protected by the Lanham Trademark Act → registration must be renewed every ten years (pp. 283-284) ● However, anyone who claims the right to a trademark can use the TM designation with the mark to alert the public ○ It is not necessary to have a registration or pending registration to use the TM designation mark ○ Under the law, it is the first person to use the mark, not the first to register it, who is protected

trademarks: abandonment

● "Trademarks are lost when they are abandoned" (p. 289). ● "Trademark owners frequently buy advertisements reminding the media to use trademarks as proper adjectives, not as nouns or verbs" (p. 290). ● For example, Xerox photocopying machine: Should not use "xerox" as a lowercase verb, e.g., "xeroxed a copy" (p. 290) ● Example (Stetson hat and Scrabble crossword game): "Journalists can avoid infringing trademarks and providing free advertising by describing students wearing western hats who photocopy their class assignments before playing a crossword game" (p. 290). https://www.uspto.gov/trademarks-application-process/abandoned-applications

descriptive remarks -> + secondary meaning

● "[D]escriptive marks can be registered if they acquire a secondary meaning" → secondary meaning: "the drawing power or the commercial magnetism that develops over time in a title or in a corporate, business, or professional name" (p. 285) → e.g., "vogue": "Over time, Vogue acquired an association between the magazine and the clothing and accessories 'worn by the American woman of discriminating and fashionable tastes'" (p. 285

defamation forms of libel

● "statements that tend to expose a person 'to hatred, ridicule or contempt'" and "may reflect unfavorably on someone's morality or integrity or discredit a person in his or her occupation" → defamatory content ● Crime: "Imprecision in crime reporting can result in a defamatory story. [...] Similarly, spewing insults online that imply criminal behavior can be costly." ● Occupation: "Allegations of criminal activity, unethical practices, and incompetence related to work accounted for more than three-quarters of the libel cases in a study." ● Business: "Businesses may sue for stories claiming they provide poor service or have committed a crime. [...] Writers need to be particularly wary of such loaded words as fraud, deception, cheated, ripped off, and gypped. [...] The reputation of a business also can be damaged by false allegations that it is financially unstable or insolvent." → single instance rule (e.g., in FL and NY): "a report of a single error will not damage a professional's reputation" ● Product Disparagement or Trade Libel: "Libel of products—called product disparagement or trade libel—defames the quality or usefulness of a commercial product rather than the company that produced it." → e.g., stories about scissors that don't cut, basketballs that don't bounce → plaintiffs must meet the burden of proof and prove financial loss & malice ["common-law malice—intent to do harm—or actual malice—knowledge of falsity or reckless disregard for the truth"] → e.g., Oprah Winfrey Show guests didn't defame Texas beef re. mad cow allegation ● Character, Habits, and Obligations: "attacks on personal character traits or lifestyle" → e.g., assertions against spouse about marital or familial obligations or alcoholism ● Politics, Religion, and Race: "People can lose face if a story questions their patriotism or accuses them of being aligned with a political group that is considered a threat to the nation's well-being." ● Humor and Ridicule: "[H]umor can become libelous if it subjects people to ridicule by suggesting they do not deserve respect. A major difficulty for writers is that even the courts disagree on where to draw the line between non-defamatory humor and defamatory ridicule." FORMS OF LIBEL 1. Words: "Some words are defamatory on their face; they are 'libelous per se.'" → "clear, unambiguous, and commonly agreed-upon meanings," including: unethical, adulterer, thief, drunkard, and cheat (see more "red flag" words in text) → innocent construction rule "provides that language should be considered non-defamatory if it can be read that way" → "In a libel case, the meaning of words must usually be considered in the context of a complete article, book, or broadcast," as well as their social context 2. Implication, innuendo, and circumstance: libel per quod ("libel by implication or innuendo or otherwise only apparent from the context or circumstances," vs. libel per se ("In most jurisdictions, presumed damages are only available when the libel is per se, while libel per quod requires the plaintiff to prove actual harm or loss to receive damages.") 3. Headlines: "Courts are split over whether a headline alone can result in a successful libel suit." 4. Photographs, cartoons, and layout: "Photographs can also be the basis of a successful libel suit if the lens creates an illusion or the picture is altered."

misappropriation

● "the unauthorized taking of the benefit of someone else's investment of time, effort, and money" (p. 281) → "In misappropriation cases, the free rider competes with the originator of the information, and the aggregate of free riders might substantially threaten the viability of the information producer's business" (p. 281). ● "A news organization, the Court said [re. the 1918 case of INS misappropriating hot news from the AP] may use a story by another news agency as a tip from which a new story can be developed through independent effort and expense. But the 'bodily appropriation of a statement of fact or a news article, with or without rewriting, but without independent investigation or other expense' is misappropriation" (p. 281).

appropriation and unauthorized publicity in the context of: celebrities advertisements look-alikes and sound-alikes video games public relations

● 1902: Roberson v. Rochester Folding Box Co., Court of Appeals ruled that Roberson had no claim against Franklin Mills Company, which used her picture as a young girl to advertise their flour (without her permission) ● New York court's rationale: "If the commercial publication of unauthorized photos may be barred, the court said, what is to prevent the courts from halting the publication of unauthorized photos in news columns? If the unauthorized publication of a person's likeness can be barred, then why not a description or commentary about a person's looks?" ● Further rationale/concern: How to distinguish between public figures and private persons? ● However, New York then passed a privacy statute against this, and the Georgia Supreme Court recognized commercial appropriation as a violation of privacy → Private citizens were compensated for "shame, humiliation, and mental distress" caused by unauthorized commercial use of their images Does not apply to celebrities: "Celebrities, these courts say, suffer a commercial loss, not the shame and humiliation of an invasion of privacy. In a word, celebrities lose their right of publicity." → "particularly if the appropriation is extensive or tasteless" ● "The right of publicity, recognized in more than twenty states, is the right of celebrities and public figures to exploit the significant commercial value in their names, pictures, styles, voices, and other distinctive features and talents." ● "A privacy right, tied as it is to a person's personality, dies when the person dies. However, the right of publicity, which is a property right, does not necessarily die with the owner." ● In summary: Appropriation generally occurs when using someone's name or identity in a commercial advertisement, "including look-alike and sound-alike advertisements." ADVERTISEMENTS Donald Manville (Manville v. Borg-Wagner Corp. (1969)): Collected damages for invasion of privacy due to his image run in a set of newspaper ads for Norge self-service laundries without his permission (thought the photograph would be used for a news story) LOOK/SOUND-ALIKES "A celebrity might successfully sue if he or she is identified through a 'look-alike.' ● "In ruling for Onassis in her appropriation suit, the court said the imitators can simulate the voice or hairstyle of the famous in noncommercial settings but that 'no one is free to trade on another's name or appearance and claim immunity because what he is using is similar to but not identical with the original.'" ● In California (Ninth Circuit): A tort for "advertisers to deliberately imitate the distinctive voice of a widely known professional singer to sell a product" TRADE PURPOSES Appropriations do not always occur in advertisements for commercial products. It is also possible to appropriate peoples' identities or violate their right of publicity through the unauthorized use of their names or likenesses in public relations promotions, posters and other commercial purposes that do not advertise a product. The New York privacy statute bars the unauthorized commercial use of someone's name not only in advertising but also for other "purposes of trade." The model Christie Brinkley sued successfully under the trade section of the New York law to stop unauthorized use of her picture on posters sold in stores. The posters did not advertise any products but traded on Brinkley's good looks and popularity without her consent.165 In another trade case, a man was allowed to bring an appropriation suit when his picture was used without permission in a Minox camera manual. The manual served an educational purpose but also was ruled to be an appropriation of the man's identity for commercial purposes.166 ● "It is not an appropriation to make an incidental reference to a real person in a book, film, play, musical, or other work, whether fact or fiction." → e.g. "The U.S. Court of Appeals for the Fifth Circuit ruled that Anheuser-Busch Companies did not appropriate Roy Benavidez's identity by depicting him as a hero in a documentary about valiant Hispanic soldiers." → "insufficient commercial benefit to Anheuser-Busch to support a misappropriation claim"

distinctive remarks fanciful arbitrary suggestive

● A mark is distinctive, or a strong mark if (p. 284): a. Fanciful ("coined specifically to be a trademark," e.g., "Kodak" camera and "Clorox" bleach) b. Arbitrary ("common words or symbols whose usual meaning has no relation to the product or service to which the words are attached," e.g., "Apple" computers) c. Suggestive ("suggest what a product does without describing it," e.g., "Coppertone" suntan lotion)

newsworthiness sidis v. f-r publishing corp

● Before the First Amendment, common law protected newsworthy information ("crime, official actions and events of significant public importance." ● "Private-facts plaintiffs often lose their cases because the have the misfortune of being involved in significant newsworthy events that reveal personal or embarrassing information." → e.g., Photo in Florida paper of Hilda Bridges fleeing apartment while naked after husband committed suicide → "[A]n appellate judge ruled for the newspaper because the picture recorded a newsworthy event in a public place." ● Also, rulings against private-facts plaintiffs when "the public was merely curious" ● "Newsworthiness has proven to be an elastic term, encompassing the sad, the macabre, the hair-raising, and the tasteless." Sidis v. F-R Publishing Corp (1940) → "The U.S. Court of Appeals for the Second Circuit said the private-facts tort is publication of information that is 'so intimate' and the publication of which is 'so unwarranted' as to shock or 'outrage the community's notions of decency.'" Child prodigy and newsworthy public figure, William James Sidis, who lectured to the Harvard math department at age 11 → Appeared in a New Yorker article years later entitled "Where Are They Now?" that framed him as a "reclusive clerk who collected streetcar transfers" → "Nearly three decades after he lectured at Harvard, the question of whether Sidis had fulfilled his early promise remained a matter of public concern."

commercialization

● Fourth branch of privacy law: appropriation → "a person is liable for invasion of privacy if he or she 'appropriates to his own use or benefit the name or likeness of another'" ● "An appropriation is usually the unauthorized commercial use of another's name or picture in an advertisement, poster, public relations promotion, or other commercial context" ● "Celebrities, in particular, lose the 'publicity' value in endorsements and other commercial opportunities when their identities are appropriated without their consent."

falsity (5 of 6 categories required to prove libel)

● Public officials & figures must prove falsity (New York Times v. Sullivan) → Private persons suing "bear the responsibility for proving their version of a case" (Philadelphia Newspapers, Inc. v. Hepps) ● Rationale: "To ensure that truthful speech was not deterred, O'Connor said the Constitution requires that private libel plaintiffs involved in matters of public interest must also establish falsehood [...] the Constitution requires the scales to be tipped in favor of protecting speech that might be true." ● Matters of public concern: The ruling in Hepps does not apply to all defamation involving private persons, only to defamation about matters of public interest." → "Private plaintiffs not involved in matters of public concern do not have to prove actual malice to collect punitive damages."

trademarks and service marks

● The "misuse of another's trademark so as to confuse the public" (p. 281) ● Trademark: The word, name, or symbol a company uses to identify itself as the source of goods (p. 283) ● "Closely related to trademarks are service marks. A service mark is a symbol that is used in sales or advertising to identify services instead of products" (p. 283). ● To register a trademark the applicant must: ○ Submit a registration application to the Patent and Trademark Office ○ Conduct a search to determine originality ○ Pay a registration fee for the trademark

legal roots of five branches (where/how did it develop)

● The Fourth Amendment: "Recognizes citizens' reasonable expectation of privacy in their 'papers,' an interest in controlling information about oneself" ● Existing statutes protected information privacy: the Fair Credit Reporting Act, the Right to Financial Privacy Act, the Children's Online Privacy Protection Act, the Health Insurance Portability and Accountability Act ● Four foci of the chapter: (1) "the publication of intimate private facts," (2) intrusion (physically or technologically), (3) "false light" or portrayal, and (4) appropriation (of someone's identity for commercial purposes), plus (5) "the media's rare infliction of emotional distress and violation of civil rights"