Law Slammer

what are two popular ways to declare one's work to be public domain or to license alternatively

Creative Commons system or the GNU Free License

examples of libel per se

accusing someone of engaging in illegal activity, being incompetent for his occupation,. engaging in adultery, calling them a child molester or sexual deviant, saying someone has a loathsome disease like an STD, or suggesting soeone is mentally ill

what are licensing agreements

agreements to let someone use or control copyrighted material

definition of libel

refers to harming someone's reputation; refers to claims based on written defamatory statements

what is meant by the privacy tort "trade secrets"

refers to a claim that allows businesses to sue for the publication of "sensitive" information

definition of defamation

refers to harming someone's reputation; means that the statement is capable of being interpreted in a way that would harm the subject's reputation

what are the 5 different concepts for which the term privacy is often used

constitutional privacy, presumed constitutional privacy, privacy torts, statutory privacy, and personal notions of privacy

how do courts decide if something is a factual assertion

courts look at the overall context and tone of the statement, not simply the technical syntax of the sentence

is indecent material entitled to first amendment protection

yes

what uses are generally fair and what are not

- its fair if you are commenting directly upon the other work; ex a book review -copying an entire work is generally not fair use unless it is truly necessary for the transformative purpose -a use might be a fair use if it is a parody to the original but not all parodies are protected; it the parody fails to be transofmrative, if too much of the original is used, or if it harms the market for the original work then it may not be protected the parody has to be of the work used not of some other thing) -courts have been equally unwilling to declare that "sequels" "prequels" and other extensons on original works are fair use -news is a potential fair use but not all news have been protected; the fact that something is newsworthy does not inherently make another use of it fair -incidental uses are usually fair use -caches and archives can be fair use as well as the use of thumbnail images in searches -the FCC has ita own copyright principle that override the rules of other industries

what does the concept of constitutional privacy refer to

-4th amendment grants protection against unwarranted governmental search and seizure, meaning the government cannot intrude into a citizen's home -there is not federal constitutional right to privacy to protect individuals from other individuals or the press but states might offer their own; however these are not the same across states -hence any constitutional right of privacy usually protects against state government intrusion

what is considered a federal government work

-a federal government work is defined as a work created by an officer or employee of the federal government in the course of performing his or her duties; things like congressional reports, supreme court xases, and advisory opinions of federal agencies are all not copyrightable -government works that are copyrightable also include works from the US post office (including stamps), works by the gov of DC and Puerto Rico, works by the UN or OSA

other tricky cases with government works and copyright

-a person must make their pwn copy of a federal work and not copy other people's copies -works that have copyright protection and that are transferred to the federal government do not lose copyright protection

what does work for hire mean

-a work created in the course of employment will be deemed a "work for hire" and will be owned by the employer; ex: the NYT owns the copyright in articles written by its employees but not necessarily the articles written by freelancers -anyone who takes a photo, writes a song, prepares text, or otherwise creates a work will own the copyright, unless it was done in the course of employment or the rights were transferred

when is a work considered original

-a work is original if it was independently created by the author and has some minimum degree of creativity -works do not have to be unique to be original; it is not the object or idea represented by the photo that is protected by copyright law--it is the effort and creativity that went into making it -a work is fixed if it exists in some stable form that allows it to be perceived or reproduced

what is one thing all states consider in privacy cases

-all states take into consideration the newsworthiness of the information--the traditional common law privacy tort included as an element a requirement that the plaintiff prove that the information was not "of legitimate public concern" - most courts acknowledge that as a matter of first amendment principle there should be a privilege to publish private information when there is a legitimate public interest in that information

how does one defend a publicity claim

-aside from arguing that the first amendment should provide protection the best defense in most cases would be to have consent -other defenses might be implied consent or incidental use

what does the concept of statutory privacy refer to

-both government and private entities collect massive volumes of information about people and the release or use of this data might create privacy concerns so there are laws that regulate the disclosure or nondisclosure of records -there are some laws that currently deal with this and congress is considering several laws that would regulate the rights of citizens with respect to how data about them is collected and used

what is the current rule regarding how long copyright lasts

-copyright lasts for the life of the author plus 70 years according to the copyright extension act of 1998 -for a work for hire, an anonymous work, or a psuedononymous work the term lasts either 95 years from first publication of 120 yrs from creation -once copyright expires it goes into the public domain

what things are and are not copyrighted

-copyright statute specifically lists literary, musical, dramatic, pantomime, choreographic, pictorial, graphic, sculptural, architectural, motion picture, audiovisual, and audio works -things that are not copyrightable: ideas (copyright law protects the expression of an idea but not the idea itself), facts, names and short phrases (however they may be protected under trademark or unfair competition laws), and federal government works

what is the difference between the terms copyright, patent, and trademark

-copyrights protect creative works such as books, movies,music, articles, etc -trademarks protect things that denote a brand, such as business names, logos, distinctive colors, designs, or sounds -patents protect systems, processes,and inventions

how do courts handle speculation in libel cases

-courts are usually willing to distinguish factual assertions from speculation -courts tend to protect statements that are clearly theoretical or speculative

how do courts handle conclusions in libel cases

-courts have been willing to protect statements that are clearly conclusions as long as the speaker provides all the facts on which the conclusions are based -difficult part here is determining when adequate facts have been provided -the kind of conclusion that should be protected is one where the facts are known to speaker and audience alike and it is clear that the speaker has no additional inside knowledge that gives his opinion or conclusion more weight; it should be understood by the listener that the speaker is concluding - in order to warrant protection as a conclusion, the facts leading up to the conclusion have to be given fairly and the conclusion must make sense -being able to distinguish facts from opinions is crucial to understanding libel law--asserting false facts would not be protected but opinions are not false in the same sense that facts are -the courts do not punish people for having stupid opinions, the only question is whether the statement is clearly an opinon

how are insults treated in libel cases

-courts have generally been unwilling to impose liability on vague insults such as calling someone a jerk/loser/creep--these terms don't have specific criteria that can be proven true or false, and thus even though an audience will understand that the subject of the statement is not held in high esteem by the speaker, the statement cannot be the basis of a libel claim because it doesn't state facts--its clearly an opinion -thus, terms like loser/skank/creep that have no verifiable meaning are usually protected unless there is some other statement or context that creates an implication of false facts

how are statements of humor usually treated in libel cases

-humor, no matter how lame or offensive, cannot be the basis for a libel claim unless the joke appears to assert a fact - when cases involve statements that are clearly jokes and not to be taken seriously the courts protect these bc they are not "factual assertions" upon which a libel claim can be based -some libel cases have been permitted where the speech at issue was intended to be humorous but the courts nevertheless found that the statement could be interpreted as a factual assertion--if it is not clear to an audience that a statement is a joke, the courts are more willing to allow a case to go forward

at what point do courts draw the line in deciding if it is the person who is newsworthy or the topic that is newsworthy

-if the person's identity is not the newsworthy piece of information then sometimes there are invasions of privacy--ex: in a story about rare eating disorders or little league coaches who molest kids the identities of the victims of the disorder or the children molested by the coach are not the newsworthy part but rather they are collateral to the discussion of the problem that is newsworthy -a persons identity might be newsworthy if they present a risk to the public due to their behavior; there is no privacy issue if the person involved was not merely an example of some issue but rather they themselves presented a risk to the public

what constitutes a false statement

-if the speaker intentionally lies, fabricates material, omits material facts, or otherwise phrases statements in such a way as to deliberately create a false impression -when a speaker incorrectly assumes facts

how does creative commons work

-it allows creators to tag their works with different conditions such as attribution, share-alike, non-commercial, and no derivative works -attribution tags mean works may be used as long as the user credits the creator in whatever manner the creator requests -share-alike tags mean works can be used by anyone freely but the user must make any work derived from the original work freely available to others too -non-commercial tags mean works may be used by any person but only for non-commercial purposes -no derivative works tags mean works may be used freely as long as the work is used on its own without modification

what is the hot news doctrine

-it is a controversial alternative to copyright law; it can be used to protect facts in limited circumstances even though facts would not be protected under copyright law -it is more akin to unfair competition laws than intellectual property laws

what does the concept of presumed constitutional privacy refer to

-it refers to privacy protections established by the supreme court; the court has extended protection against governmental intrusion into private matters in some cases -these protections are not explicitly spelled out in the constitution but have been recognized as a natural extension of what the concept of privacy should mean with respect to government action -these principles apply only with respect to government action,not to the actions or rules of private parties

what does it mean to appropriate someones name

-it simply requires the use of the person's name; this person does not have to be famous--anyone can have a publicity claim if their name or likeness is used without consent -a person's likeness can be appropriated in a wide range of ways ,including the use of pictures, look alikes, sound alikes, cartoons, nicknames, catchphrases, and even robots

what is public domain

-its a technical term that means that a work is no longer under copyright protection either because the time period for protection expired or because the author intentionally waived or was not entitled to protection -not everything that is publicly accessible is in the public domain -works created prior to 1923 are now (with some exceptions) in the public domain -works created as of 1978 are not yet in the public domain unless the author has intentionally waived copyright -for works created between 1923 and 1978 the rules vary

how do states usually handle claims for publication of private facts

-many states permit a person to bring a claim for publication of private facts; it is a state law tort and thus the exact requirements of the tort may vary by state -most jurisdictions allow such claims and take into consideration in some form of the following factors: 1)whether the information is "private" 2)to whom was the information disclosed 3)whether the disclosure was "highly offensive to a reasonable person" 4)whether the information is newsworthy 5) whether there are any additional defenses that might apply

what is contributory infringement

-means providing the means to let others infringe copyrights; ex music sharing sites -copy right protects against contributory infringement -federal law makes it illegal to make or sell software that breaks encryption codes or otherwise permits users to circumvent copy protection

what is the relationship of copyright law to moral rights and plagiarism

-moral rights are similar to copyright protection but they go beyond what copyright protects; the two main rights are 1) the right of attribution (to have your works identified as your works) 2) the right to integrity (the prevention of destruction or distortion of an artistic work) -the US does not generally protect moral rights (except I some cases with art works) -plagiarism is an ethical issue involving proper credit while copyright is a legal issue involving the use of material;

what is a joint copyright

-multiple people who create something together are joint creators and will jointly own the copyright -if it is a joint work, any creator can exploit the work in any way, as long as they pay half the income derived to the other creators -joint creators sometimes write contracts agreeing that any license must be approved by all creators otherwise one creator cannot stop another from selling out

does failure to register a work deprive federal courts of jurisdiction over a copyright infringement case

-no; even though part of the copyright statute says that registration with the copyright office is a requirement to sue for damages in federal courts the Supreme court has ruled otherwise

what are notices useful

-notice lets other people know whom to contact for permission to use the work -if you sue someone for copyright infringement and your work contains a notice, it is much harder for the infringer to argue that they acted in good faith

what does the concept of personal notions of privacy refer to

-people use the term privacy subjectively to refer to those things that they wish not to discuss or expose publicly -not a legal concept, just the idea that people should mind their own business -whether a person's subjective notion of privacy is actually enforceable will depend on whether any of the concepts of privacy listed above apply to the situation

what kinds of statements are usually protected as opinon

-reviews of books/movies/restaurants as long as harsh statements are backed up with valid examples or the statement is clearly hyperbolic -anything that reflects aesthetic value judgments, such as referring to someone or something as "ugly" or "disgusting"

what are some common terms of agreement in licensing?

-rights: what rights are requested and all the ways the material can be used, such as how will the material be disseminated or if the user can sublicense the use -cost: how much will the copyright holder charge for the use of the material -territory: can the materials be used internationally or is use only granted in a limited area -duration: for how long is the user free to use the material (to use the work forever the license must grant perpetual rights) indemnity: will the user or the copyright holder take legal responsibility for any damages caused by the use of the material - the work and the parties: an agreement must include a description of who the licensor is (who owns the copyright), who the licensee is (who is allowed to use it), and what the licensed work is (the material to be used) -governing law and jurisdiction: sometimes parties decide in advance that a certain state's law or courts will govern any disputes that might arise out of the agreement or the use of the material

what have the courts concluded about what it means to speak with reckless disregard for the truth

-the court determined that it is not necessary for the speaker to act like a "reasonably prudent" man--a speaker acts with reckless disregard if he did actually entertain serious doubts about the truth of the statement and in cases where there are obvious reasons to doubt the truth of a statement a speaker may act with reckless disregard by republishing it -in general courts have found actual malice in circumstances when there are subjective doubts about the truth of a statement and also when the facts indicate that there are obvious reasons that anyone should doubt the truth of the statement -actual malice has also been found in cases where there is outright fabrication or distortion -bascially actual malice is definitely found if a reporter/speaker knowingly makes things up or intentionally distorts facts, it might be found if a reporter/speaker has an agenda and willfully ignores info that is adverse to the position he wishes to advocate and if this is presented as fact, and it might be found if there are significant reasons to doubt the truth of a statement but the statement is published anyways

the right of publicity is a vague claim in law but what principles tie most of the cases together?

-the law is intended to avoid false implications of endorsement; people are protected from being associated with products without their consent -names and likenesses are valuable things that can be licensed and the use of a person's name or likeness may warrant compensation --there is some protection for people to express thoughts, ideas, and historical facts that involve others and there is generally an effort to strike some balance between protecting publicity rights on one hand and preserving the first amendment rights on the other

how are statements using rhetoric or hyperbole treated in libel cases

-the supreme court has consistently ruled that libel claims are meritless where the statement at issue cannot reasonably be construed to state actual facts, and this is particularly true where the statement is rhetoric or hyperbole that is not meant to be taken literally -therefore it is fairly well established that the first amendment will protect speech if the words used are expressing an idea and not meant to be interpreted literally

license: there are things to consider in obtaining permission from a copyright holder to use a work

-the user must determine who the copyright holder is; it is important to ensure that the person granting permission actually has the authority to grant it -once you find the copyright holder the parties must negotiate the terms of the agreement (rights, cost, territory, duration, exclusivity, indemnity, the work and the parties, governing law and jurisdiction) -finally, any agreement should be in writing and the written licensing agreement should include the terms listed above

what have courts clarified about rights to privacy

-there are some places where a person might be exposed to a limited group of other people but that does not mean that they would lack a privacy claim if material were published more broadly -information need no be completely secret to be private; limited disclosure to a small group of people who had legitimate reasons to know the fact do not bar someone from bringing a claim when the fact gets broadcasted to the public at large -courts have even allowed privacy claims to go forward when the information was voluntarily disclosed to a reporter--even if the one person told is a reporter an individual may still have a protectable privacy interest if they do not consent to broad disclosure

who owns the copyright

-whoever created the work owns the copyright -the owner can be an individual, two or more people, or a corporation/organization

in general, you can use material created by another if any one of the following apply

1) it is not copyrightable 2)copyright has expired 3)the user gets permission or a license 4)the use of the work is permitted under creative commons or similar alternative to copyright law 5) the use qualifies as a fair use 6) some other exception applies

what factors did the court of the Gertz decision note to justify different treatment for different kinds of plaintifs in terms of actual malice

1) public figures have access to media and other effective channels of communication that allow them to counteract false statements 2) public figures voluntarily expose themselves to more scrutiny than private figures; if a person has not sought influence then they are more deserving of protection from scrutiny thus, the court of the Gertz case decided there should be some middle ground for private figures so many states have applied a negligence standard that holds publishers liable if they fail to act with reasonable care

what 5 things does q copyright grant the holder an exclusive right to do

1) reproduce the copyrighted work (right to control making copies) 2)prepare derivative works (second work based on preexisting works) 3) distribute by sale, transfer, rental, lease, or lending (copyright holders can control whether or how a work is distributed but the first sale doctrine states that a copyright holder's right to control an individual copy terminates after the first sale of that copy) 4) perform the work in public ( royalties for the public performance are usually required) 5) display the work (control over public display)

if a copyright holder sues for infringement, what do they need to prove

1) that the infringing work is substantially similar to their copyrighted work--the closer the use is to the vague ideas end of the spectrum ( as opposed to exact similarity on the other end), the less likely a court will find it to be an infringement 2) the defendant has access to the copyrighted work--there is not infringement if the similar work can be created by coincidence

what are the consequences of copyright infringement

1. actual damages (the copyright holder's lost profits) 2. disgorgement of profits (the money the defendant made) 3. statutory damages ($500-$100,000 per infringement based upon the judge's discretion and depending on whether the infringement was willful or accidental) 4. injunction ( an order to stop infringing) 5. criminal prosecution (punishment may include fines or jail)

what are the four factors to be balanced in determining whether a use is fair

1. the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes 2. the nature of the original copyrighted work; was the original work published or not? (unpublished works generally get greater protection than published works bc copyright laws grant the creator the chance to control first publication); was the work fictional/creative or factual? facts cannot be copyrighted but creative elements can be 3.the amount and substantiality of the portion used in relation to the original copyrighted work as whole-the more of the original work that is used the more likely the court will find it to be an infringement 4. the effect of the use upon the potential market for or value of the copyrighted work--is the use competitive with the original work in such a way as to interfere with the copyright holder's ability to profit from his work

what is the test for determining whether sexual content qualifies as obscenity

1. would the average person applying contemporary community standards find that the material appeals to a prurient interest? 2. does the material depict sex in a "patently offensive" manner 3. would a reasonable person find that the work as a whole lacks serious literary, artistic, political, or scientific value?

what changed the legal standard for fault in libel cases

New York Times Co. v Sullivan--this case set the standard that the defendant needs to show actual malice--knowledge of falsity or reckless disregard of the truth- in order for something to be libelous; however, actual malice need not be used in every case-the level of fault required could vary depending on the status of the plaintiff

what does the phrase "highly offensive to a reasonable person" refer to

a claim will not be permitted unless the disclosure was "highly offensive" but the test is whether the disclosure would be offensive to a person of "reasonable sensibilities" not whether it was subjectively offensive to the plaintiff

what kinds of statements are defamatory

a defamatory statement is a statement that reflects poorly on a person's reputation, morality, or integrity; common statements that are considered defamatory include statements that impute the commission of a crime or tend to injure someone in his occuptation

explain the concept of substantial truth

a doctrine that holds that statements need not be technically correct as long as the gist of the statement is true; if the "sting" of the report is true it probably isn't libel; its also not considered false to modify a source's quote as long as the change doesn't substantially change the meaning of the quote

what is libel per se

a libel statement that can be obviously harmful to one's reputation, such as saying that someone committed a crime

what is libel per quod

a libel statement that is not obviously harmful; ex: Saying John Smith is dating Jane Doe isn't reputation destroying in theory but it becomes harmful and enters the realm of defamatory statements if the audience knows Jane is married to someone else and the sentence becomes an accusation of adultery rather than idle gossip; its important not to make assumptions about things and publish them as if they were fact

historically how would someone be liable for libel

a person who published a false, defamatory factual assertion about someone would be liable for libel

how does one obtain a copyright

a work is copyrighted immediately upon creation--there are no other requirements. However, a creator should consider adding a notice and registering the work with the copyright office

what are the two standards of fault in libel cases and what decides the standard used

actual malice and negligence are the two standards and the plaintiff (private or public) decides which standard is used--public may face actual malice while private would face negligence

what uses of a persons likeness are typically considered commercial uses and what are considered newsworthy/otherwise deserving of protection in publicity cases

commercial purposes: ads, merchandise, deserving of protection (even if people profit from them): products that are expressive or transformative, anything with factual information, newsworthy info (only when the information in question is related to the newsworthy reason for mentioning the person)

what are the basic criteria for works to be copyrighted

copyright law protects original works of authorship fixed in any tangible medium of expression; hence, the basic criteria for any work to be copyrighted are that it be original and fixed

define obscenity laws

criminal laws that are enforced by the government via prosecutions or regulatory actions; because there is not first amendment protection for obscene material, it may be banned or seized and people may be prosecuted for buying or selling it

what does it mean to say the right of publicity is descendable

descendibility is the ability to pass on a right to one's heirs when one dies;libel claims are not descendible and most states do not permit privacy claims to be brought by their heirs but the right of publicity is descendible in some states

what are the defenses to copyright claims

fair use is probably the most commonly used defense, sometime the defendant can argue that his use is covered by a license, sometimes a defendant prevails by showing that the plaintiff does not hold a valid copyright in the original; and sometimes the safe harbor provision is referenced

even if a statement is defamatory, there is usually no valid libel claim unless the statement is also...

false/has a false implication

when does the defendant sometimes have the burden of proving the statement is true

if a court deems that the subject matter of a communication to be of private concern, as opposed to public concern, then the defendant may have the burden of proving the statement is true in order to fend off liability

what was the legal standard for fault in libel cases

if a person made a statement that happened to be false, even if he had good reason to believe it was true, the speaker would be liable--the legal standard for fault was "strict liability," meaning that the person was liable if the set conditions were met (aka if a defamatory false statement was made)

what is different about privacy claims in comparison to libel claims in terms of the size of the audience

in libel cases defamatory material is considered published even if only one other person received the information but privacy claims require "publicity" meaning that the information is given to the public or at least a large segment of the public

how does a GNU free documentation license work

it means that a person may use the material for any use (commercial or noncommercial, modified or not) but the material must remain free to anyone else and credit must be given to the creator (with a particular notice provision)

what is meant by the privacy tort "publication of private facts"

it refers to a situation where the plaintiff is suing the defendant because he believes that the defendant has improperly published private information

what does actual malice mean

knowledge of falsity; except in Massachusetts where it means ill will

is libel based on state or national law

libel is a matter of state law and every state has quirks in its interpretation of the law which means its important to know the laws of the state where the claim is filed; a lawsuit can have very different outcomes depending on what state it is filed in and how broadly that state protects certain kinds of speech; even when a case is filed in federal court due to diversity jurisdiction the court will follow the libel law of the appropriate state--there is no federal libel statute

defamation criteria has changed; what examples does the book give of things that were once considered dematory

misidentification of a person's race and suggestion that someone is gay; the statement must be likely to harm a person's reputation given contemporary social standards

what do the other exceptions that permit a person to use a copyrighted work without consent usually involve

most involve statutory licenses for musical works

do states treat libel and slander differently

most states have eliminated any significant distinctions in the way the two claims are treated, although there may be some distinctions in a particular state's law with respect to the way damages are calculated

define neglience

negligence means failure to act with reasonable care; it asks a court to consider what a reasonably prudent person would or would not have done under the same or similar circumstances; can be thought of as failure to investigate thoroughly while actual malice is purposely avoiding the truth

what types of things do the courts usually consider newsworthy

newsworthy: crime, accidents, fires, acts of public officials, chairtable events, sports, entertainment, info about celebrities or public figures bc theres public interest in their activities and bc they subject themselves to public gaze in their seeking of publicity (newsworthiness can outweigh privacy concerns even if it is something horrifying or embarrassing so long as it is of public concern)

in a libel claim what does the plaintiff have the burden of

plaintiff must prove all of the elements in order to win a lawsuit and even if a plaintiff can prove all the elements of the claim, a defendant can prevail if there is an applicable defense. these elements must be decided in favor of the plaintiff: 1. the statement is defamatory 2. the statement is false 3. the statement is a factual assertion (as opposed to an opinion or joke) 4. the statement is about a valid plaintiff, who is identifiable 5. the statement is published. 6. the defendant acted with the requisite level of fault. 7. the plaintiff suffered damages.

which of definitions/concepts of privacy does this course/book care about

privacy torts are most important to us because they may form the basis for lawsuits against the press

information that the court does/does not usually consider privat

private: the person at issue actually did try to keep it private and its something that most people would try to keep private such as medical info, drug or alcohol abuse, information about sexual activity or orientation, a phone number or address not publicly available, etc not private: info that is a matter of private record/info that was previously disclosed/something that occurred in a public place with no expectation of privacy

definition of slander

refers to harming someone's reputation; refers to claims based on spoken defamatory statements

similarities/differences between libel and false light

similarities: false light claims use some version of these elements: 1. the widespread dissemination 2. of highly offensive 3. false material 4. about the plaintiff 5. with fault two notable differences: -the dissemination must be widespread as opposed to a libel case where the material is "published" if only one other person receives it; thus, libel is the only claim available if the false information is disseminated to only a few people -in false light cases the information need not be defamatory meaning it needn't harm one's reputation but it needs to be highly offensive

who does the actual malice standard favor

the defendant--it is difficult to prove and protection of expression is usually given even if the speaker was wrong

a review of the case law shows that which two factors are most important to decided which uses are fair

the degree to which the use is transformative and the degree to which the works compete in the marketplace

how does the court define what is a matter of public concern

the general principle is that the subject matter must be something that a significant number of people care about or that would affect the lives of a significant number of people

what do the courts most care about in libel cases against publications

the important factor to the courts is not whether the speaker intended any particular implication but whether the natural implication of the story is an accurate reflection of the facts

what is the main issue to distinguish in publicity cases

the main issue in publicity cases is distinguishing between "commercial uses," which are generally not granted first amendment protection, and other uses that are considered newsworthy or otherwise deserving of some protection

how does a court go about evaluating the fault element of a libel claim

the plaintiff is classified into 1 of 5 categories and then the court applies the level of fault applicable to that type of plaintiff the categories are public officials, public figures, private figures, limited-purpose public figures, and involuntary limited-purpose figures

who does the negligence standard favor

the plaintiff--it is usually easy to argue that it would have been reasonably prudent for the defendant to have taken additional steps to verify the truth of the statement

who has the burden of proving that the allegedly defamatory statement is false

the plaintiff; it can be very difficult to prove that a statement is true--the source of the information might disappear or be uncooperative or change his story, leaving a defendant with no witness to help him at trial which is why the burden of proof is on the plaintiff rather than forcing the defendant to prove the truth of the statement in question

historically what were the primary ways to avoid liability for libel

the primary ways to avoid liability were to show that the statement was true (as opposed to false), that it was not defamatory, or that it was "fair comment" (as opposed to factual assertion)

what is the right of publicity

the right of publicity is the right to control the use of one's identity in commercial contexts; state laws typically prohibit "the appropriation of the name or likeness of another for commercial purposes without consent"

what does the concept of privacy torts refer to

these are claims that give one person or group the ability to sue another person or group for perceived invasions of privacy; ex if a news organization is going to be sued on privacy concerns the claims will likely be one of the privacy torts

How have courts tried to handle lawsuits

they've established rules that try to balance the interest of the plaintiff in protecting his good reputation with the defendant's interest in free expression or the free flow of information; the principles of free speech are in conflict with a person's claim to good reputation because to protect a person's reputation it would be necessary to restrict anyone else from speaking ill of him

which factor is one of the most important and also one of the most difficult

whether or not there is factual assertion--a libel claim should be based on a factual assertion as opposed to on an opinion, joke, rhetoric, or hyperbole--aka to have a libel claim the statement at issue must be something that a person could reasonably believe states actual fact

can a libel suit be based solely on a defamatory caption or headline

yes-even if a story itself is true and accurate, a misleading headline can stand alone as a defamatory statement if it leaves a false impression