MC 401 Exam 2

• Commercial speech - Key case is Central Hudson for this doctrine - a form of intermediate scrutiny but a more evolved version • Also, the FTC is a key regulator of advertising. They have remedies to employ.

Yes

False Light

"presenting someone in a manner other than he or she actually is"; The test in most jurisdictions includes 2 key elements: a. The statement must be offensive to a reasonable person. b. It must be done with reckless disregard for or knowledge of falsity. (AKA Actual Malice) - It has now been incorporated into privacy law. Everyone who sues for this must show actual malice now. No matter who they are. Kind of sounds like defamation. Some state courts have rejected this kind of tort in their jurisdiction for that reason - "We already have defamation." c. Defamation vs. False Light i. Defamation 1. Designed to recover for harm to reputation 2. Just has to go out to one other (outside) person for it to be something you can sue for 3. Must be BAD - undesirable terms, etc. ii. False Light 1. Designed to recover for plaintiff's own feelings 2. Was born in mass media age; Must be "widely disseminated" 3. Doesn't have to be bad - can be in the range of neutral to favorable as long as it's not true d. EX: Cantrell v. Forest City i. Demonstrates how something could be neutral/favorable about someone and still generate a false light. Cantrell is the plaintiff. Lost her husband. Died in bridge collapse. Tragedy. A year later, local newspaper did a retrospective on where are they now for the survivors of the tragedy. Cantrell was one of the subjects. Had many children. Living in poverty. Reporter portrayed her as doing pretty well. Used words like "stoic" or "impassive" about her dead husband. Doing ok. This is clearly not defamatory. She sued b/c it put her in a false light. The basis of her claim - the reporter tried to interview her and she wasn't there. He had just created the story from his head. That's actual malice. She said, "That's not me. That presents me in a way I'm not. I'm poor and miserable." Not defamation, but constituted false light. The reporter ended up to go on to be a fiction screenwriter in Hollywood. Seems right. e. Why did we get this false light tort? We have libel. What's the argument for having false light? People can now just start complaining about anything they don't like written about them. You could also argue that the harm to her is minor here. However, you could also say the harm is major. She was portrayed as being something totally other than she was. Unfair. Journalists shouldn't be able to get away with fabrication/exaggeration. Therefore, most states do have the false light tort.

Infliction of Emotional Distress

A common one that the media get hit with. Also known as Outrage. Originally thought as a media tort and now basically every media law suit has this thrown in with libel, etc. Not a huge problem. The media can usually knock it out. It arose out of when hideous things happen and people could think of no other way to get recompensed. Suppose someone dies. Everyone goes to graveside service. Undertaker drops casket and body rolls out. This is the kind of situation that this arose to protect. There ought to be a law against it, but there's not. That's what this is for. Definition: "conduct that is outrageous and exceeds the bounds of decency so far as to be intolerable in a civilized community." Problem: What is a civilized community? How do you define that? The idea is that if you told someone the facts of what happened, anyone would exclaim, "Outrageous!" That's a vague thing and an immediate problem. It arose in cases where something terrible happened and someone felt like someone needs to pay for it. Remember after NY Times v. Sullivan, it was hard to prove libel. A lot of smart media lawyers decided to come up with new torts since libel was harder to prove. o Major case that went to Supreme Court: Hustler v. Falwell. He was a wildly successful televangelist. A religious and political figure. Founder of the Moral Majority. Went after pornography, abortion, gambling, etc. Was a powerful figure. He was hated by publisher of Hustler Magazine - Larry Flit. Falwell spoke out frequently against Hustler. Flint was upset with this. Flint decided to create a mock ad to tweak Falwell. It was a fake ad that looks like a class ad campaign of the 70s. Celebrities gave interviews about their "first time" drinking liqueur - Campari. Also had sexual double entendres. They made it look like a real ad, but it wasn't. Falwell would never drink. They put it on inside cover of Hustler. Said that whenever he was in the pulpit he was drunk, his first time was with his mother in an outhouse, etc. No reasonable reader would ever think this was realistic. It was beyond belief. Obv. a parody. There is a tiny disclaimer at the bottom. "Ad parody. Not to be taken seriously." You didn't even need that though. Falwell found out. His mother had recently passed. He sued. ON THREE GROUNDS: • Libel • False Light • Infliction of Emotional Distress - They added this one b/c the first two might easily lose. He actually did lose on the first two. They fell out b/c he was a public figure at the time. Household name. Also a political activist. Injected himself into public controversies. Couldn't show actual malice. As a result, loss. Before you have actual malice, you have to have a statement of fact. It was obvious that it wasn't b/c of the disclaimer and b/c it was so egregious. The audience didn't understand it as factual statements about him or a real interview. Everyone knew he wouldn't say that. It was clearly parody. IT WAS A RHETORICAL HYPERBOLE. Campari didn't get involved, although they probably could have because it represented their product badly. They actually won on IED though, going up to the Supreme Court. There is also a worse kind called "Intentional Infliction of Emotional Distress." They won this, too. In a deposition, Hustler person said that he DID intend to hurt Larry Flit. His lawyers were cringing. The Supreme Court doesn't like this type of parody. However, lots of media entities say things that might cause IED. If we just start handing out these verdicts, it could crush freedom of speech. It could be very disruptive of the First Amendment, if so. The Supreme Court decided: "When a public figure brings an IED suit, he or she MUST prove actual malice." Hustler wins the case. Falwell loses. In the Supreme Court. • The lawyers were basically trying to do an end run around the Sullivan case here. And the Supreme Court could not allow that. You can't just evade the Constitution. "You can get around Sullivan by calling your tort something else." They said, "Sullivan applies to this kind of action too, if it's a public figure." He has to meet same standard in all 3 circumstances. A very protective rule. Very important case. • Don't need to know this, but he send copies of this out to all his followers and said, "Send money." Then Flint sued for copyright infringement. It was the litigation that would never end. o Snyder v. Phelps in 2011 - Arose out of Snyder v. Westboro/Phelps. They protested at Mr. Snyder's funeral with signs. He sued for emotional distress against the church. Won a big verdict in lower court b/c it was his son's funeral. Ultimately, Phelps wins. Westboro won. The key thing was that it concerned a PUBLIC ISSUE. A political view. And we know those are highly protected. Their theology is that it's good that our service people die abroad b/c it shows we're a bad nation b/c we tolerate homosexuality. Even though these are abhorrent to the majority, the 1st amendment protects their right to demonstrate them. Also unique, they were in a place where police said they could stand. They weren't up in his face. They didn't storm the cemetery or storm the guy. They followed rules set down. They sort of followed the rules laid down. Another IED case. o Armstrong v. H&C Communications - Shows how this tort can still bite you as a media person. Out of Florida. H&C owned an Orlando TV operation. News operation. Case going on in Orlando where a young child was kidnapped. They followed the case with news reports for a year or two. The child was found to have been killed. Found remains. The end of the saga. The news crew went to police station. The police offered for them to see the remains. They were in a back room filming the bones with a camera. The person takes the skull and holds it up. Go back to the newsroom. The debate was whether to air it in the newsroom. They decided to do it. Contradictory to smart logic. At the end of the debate, the news director cut off the debate with the words, "F*** it, let's run it." He was just trying to end the debate, but to a jury, that looked callous. The plaintiff discovered this with due discovery. The family saw it. They were horrified/traumatized. Sister ran screaming from the room saying, "That can't be my sister." The family sued for libel and IED. It sounds like this meets the definition. Pretty darn horrifying. Case ultimately settled for huge dollars. People probably lost their jobs, etc. This is an example of a case where you CAN lose this case as the media. What could they have done to avoid this? Call the family and warn them. Tell them not to watch. It might be very disturbing to you. That would be a different case in front of a jury. They're the only people who could sue you for this, so this would be a smart tactic. The police officials got sued too, and they settled as well. IN the last 10 years, we're getting coarser in what we tolerate on TV. Remember this case - there CAN be extreme stuff. Also, what about TV shows where the intent was to scare people? They thought they were getting kidnapped, etc. That could open you up to this, too, even if you signed a release. It's hard to sign away all tort claims. It's different than signing away your image and its use. Be aware of this tort, especially with extreme or edgy things.

Appropriation

Sometimes called more frequently "Misappropriation." - Right of Publicity might be most common name. Right of Publicity. This is the APR tort. Definition: "The unauthorized commercial use of a person's likeness, name, etc. in a commercial context." Primarily a celebrity right, not exclusively. EX: Tiger Woods. You can't just slap his likeness on some golf balls you're selling. He would sue you for huge damages. VIDEO: E Trade Baby commercial from Superbowl 2010 - Lindsay Lohan sued over that commercial because there was a line. "So, that milkaholic Lindsay wasn't over?" She claimed it referred to her. A general cultural reference to her. She settled with them. They paid her. She also has sued Grand Theft Auto 5 recently b/c there's a celebrity who gets in a cop chase and crashes a car and is a drug addict, etc. She claims it's her likeness. Sometimes you can also claim a loss of income in damages, too. Under the etc. you can also include someone's "persona." Courts have been more and more generous with awarding these as of late. • EX: Bette Midler Case - She was approached to do a car ad. They wanted her to sing a song, "Do You Wanna Dance?" Playing as the car drove down a moonlit road. She declined. They hired a backup dancer who did a really good Bette impression. She sang it as Bette. She didn't own the song. However, the question was the sound of her voice. She claimed that was part of her persona. She won the case. $400,000. You can technically own the sound of your voice. • EX: Tom Waites won a case against Frito Lay who had gotten a sound-alike to sing a Frito Lay commercial. • Not just your name and likeness - can include many things that may seem to pertain to you - like your voice • The reason Family Guy and South Park gets away with it - it's not considered a commercial use. Not advertising or PR to sell products, etc. Courts look at the material itself as expressive content. • Vanna White sued b/c there was a robot parodied as a Wheel of Fortune in a dress with jewelry on turning cases. She won. • Johnny Carson and a maker of portable toilets that put out a product called, "Here's Johnny!" He said that was his signature line. Courts agreed. He won. It didn't use his likeness but part of his name - Courts ruled it was a recognizable allusion to him. Have to be really careful with this. • Also, college athletes sued NCAA college football games b/c the stats were the same as the real players but not even using their real names. They won. Courts are very open to these claims. Be cautious when using anything that connects with the person. Not just famous people, too. This can happen with local commercials and photo shoots, etc. too. • You should get release formed signed for anyone involved that you might be using their image. Anyone and everyone. o Defenses to the Right of Publicity: • Newsworthiness/Expressive Use - If you're covering a news story, you don't have to worry about getting releases of people. Just like Sports Illustrated can put Tiger Woods on the cover all day long. You're not using his image to sell something. This is a story. A more expressive use. When it comes to video games, the courts are not as accepting of this defense. That's what happened with the college athlete video game. • Consent - If you get someone to sign a release, it's a good defense. Can't be sued for this. You want to get consent even if you don't necessarily need it. Consent is a deterrent to people to sue. You are warning people away. Not a bad idea to get it, even if you don't strictly need it. • It should be written. Oral consent will not do you much good. • Scope and duration of the use - Must detail what kind of publication it will be used in. Define the uses of the image. You want it as broad as possible - they want it as narrow as possible. Must negotiate. Also, this doesn't last forever. Write down how long. • Specify the payment - That you are paying them something. In contract law, there must be consideration between the parties. Specify that you have paid them so that they are bound by the contract. Also, mentally competent adults must sign agreements. You must be of age.

Copyright

The most important section of the course for us as practitioners. • Used to not be applicable since people didn't own copiers, printing presses, etc. Now in the age of digital everything, can get you in a lot of trouble. Copyright has foundations in the Constitution. The framers included the idea that you could create copyright law in Article I, Section 8. A laundry list of things that Congress can do. Among these is create copyright law. o Actual language: Congress has the power "to promote the progress of science and the useful arts, by securing for limited times to authors and inventors" [certain exclusive rights.] o This also creates the power to create patent law. These are both covered under this clause. o Science here refers to Copyright. To them, science just meant human knowledge. The corpus of human knowledge. The useful arts refers to patents. Inventing stuff people can use. Machines, chemical compounds, etc. Authors refers to copyright, and inventors refers to patent. o "To promote the progress." _ Copyright doesn't give you a right b/c you deserve it. It's there to benefit the public. Copyrights are an incentive to creativity. Why so? What if people couldn't make money from books, songs, etc.? No one would create. They have to make a living. Downloading, etc. cuts into that incentive to create now, and we may see a decline in "good stuff" as a result. Copyright is created as an incentive to creativity. We all want to live in a rich culture with art, literature, music, etc. If you create something, you get an exclusive right/monopoly to sell it. Incentive. Big thing: We're giving something to the creator so they will benefit the rest of us. It's created for the public good, not the creator. It's for the creator so they can create for all of us. • What does copyright apply to? o EX: literary and artistic works - books, paintings, plays, films, photographs, songs, sculpture, etc. All the types of content people create in the media business. • How do you get a copyright? o KNOW THIS: Copyright arises when you (as the creator) fix the work in a tangible medium. (NOT "file something with the federal government, etc.) This means you must put it in some semi-permanent form. If you are strumming your guitar and want to copyright your chord progression, must record it, note-take it down, etc. Put it in some permanent form. Boom. The copyright now exists. As of that moment. There are reasons to register the work, but registration doesn't cause it to come into existence. EX: If you take a picture, as soon as you take a picture, it's copyrighted. If you write a poem - Type it and hit save, write it longhand, that's all copyrighted. It comes into existence. • However, some things are not copyrightable. What Is Not Copyrighted: o "Ideas/Expression Dichotomy" - Ideas are not copyrightable but expressions are. If you just have an idea of a romcom - Boy meets girl and boy loses girl. You cannot copyright that. Just a very generalized abstract notion. How could you translate it into something you can copyright? Give them names, add details, setting, plot, etc. The more you add meat to those bones - the more you move towards expression, which IS copyrightable. When Einstein had ideas about the universe, he couldn't have copyrighted them, i.e. E=MC2. However, the paper he published about his findings is definitely copyrightable. o Fact/Expression Dichotomy - If you write a news story about a crash that happened, etc. you can't copyright that. Anyone can write a story on those factual events. However, you can copyright the style in which you wrote it, etc. This is interesting in historical work. • EX: The Da Vinci Code. - Same premise of events about what happened. Jesus and Mary got married and their kids moved to France. A couple had written a book and put it forth as history saying this actually happened. Dan Brown wrote a fictional novel with an allusion to the factual book and put it forth as history. Not copyrighted. Because, if you put something forth as a fact, it's considered factual and NOT copyrightable. o Fact Expression - EX: What if someone was taking notes of what the instructor said verbatim and was trying to sell them to other students? He has a copyright on his notes that he's using to lecture by fixing them in a tangible medium. He has them written down. Or he could be recording himself. In theory, he could sue for copyright infringement. However, what he's telling us right now about copyright law is a fact. He can't copyright the raw facts of copyright law. But he CAN copyright the manner of expressing those. The way of putting it. The structure of the lecture. Same way with the authors of the textbooks. It's just facts, but the book is copyrighted based on how they put it forward. There are just facts plus the way they're expressed. The latter can be copyrighted.

Physical Harm

There are a series of cases in which the media gets sued. The premise is that a media message causes physical harm to someone in a variety of different ways. o Physical Harm to Self - Hustler Magazine published an article about autoerotic asphyxia. A 14-year-old kid read it. Tried it out and died. Accidentally hung himself attempting this sexual technique. There were warnings in the article. The parents sued Hustler saying they caused their son to accidentally hang himself. The courts said NO LIABILITY for Hustler. 2 basic reasons: • The article was protected by the First Amendment/freedom of speech. It was just sexual content, which is protected, not obscenity, which is not protected. • The article did not incite anyone to do anything. Did not incite the action. It said, "Don't try this at home. This is dangerous. Watch out," etc. There is a 1st Amendment doctrine called incitement. One person leads a mob of people to do things. Overcoming of the crowd's rational faculties. "Let's go burn down that building." More of a face-to-face thing. Hard to do in media/print. That was not the case here. This is the standard outcome in these type of cases. • Similar case involving Ozzy Osbornue. Arguable one of his song's talked about suicide. Someone forced a person to listen to it. That person took their own life. Court ruled that there was NO LIABILITY. People are ultimately responsible for what they do. Movies and video games don't cause people to do stuff. People cause people to do stuff.

Harm to Others

This one, for him, is more of a worry. o In Fayette, AL a case arose where they killed police officers. They argued that Grand Theft Auto caused them to do it. Obsessive player. Followed the script. However, they lost the case. o Several other cases in school shootings where they claim that video games are responsible. Redneck Rampage was a video game in that case. The shooter played that a lot. They sued. There's an early Leo DeCaprio movie in which he shoots a lot of his classmates in the movie. They also sued against this. In most all of these cases, the general result is NO LIABILITY. That's the standard. In general, you as the media are pretty protected. • There is, however, an exception. THIS IS THE OUTLIER. Extreme, rare case. Case is called Rice v. Paladin Enterprises. This is a book publisher. They have a bizarre set of topics they take on in their publications. How to survive in prison, how to drop off the grid, etc. Instructional books about bizarre things. More for entertainment purposes, probably. Once published a book called Hit Man: A Manual for Independent Contractors. Actually had step-by-step instructions. Sadly, someone had a copy of the book and actually became a hit man. Woman and man divorced with a disabled child. Husband decided to have ex-wife and kid killed to get the money from the settlement. They discovered this and caught the hit man. They decided to sue the publisher of the book. - DEEP POCKETS. There was even a Lifetime movie about this. The surviving family actually won against the publisher. It was in the 4th Circuit U.S. Court of Appeals in 1997. Court opinion included language from the book: "How should you become a hitman? When you go to commit murder, need several pair of rubber gloves, etc. Knife should have 6-inch blade with serrated blade. Twist blade before you remove it." Another example where they said, "Kill them this way and it often looks like accidental wound, etc." How to dispose of the body. How to destroy dental records. How you will feel after - "You feel absolutely nothing." You will feel cocky with getting your money. Independence and self-assurance. The people around you will become "irritatingly ordinary." This last part is really bizarre like motivational speaking for serial killers. That almost verges into "inciting the action" - self-improvement almost. Ultimately, the court decided that the publisher CAN be held liable legally. It was on an appeal. They likened it to, "aiding and abetting," which is a criminal concept, just in a civil concept. What set this apart was that it looked like NONFICTION. You wouldn't sue based on fiction, because that opens up EVERYTHING like Shakespeare, etc. He's not really sure this decision is right. That the book is the essential element in what happened. You can watch Criminal Minds, read many other fiction books, etc. The publishing company arguably didn't intend for this to be a how-to manual. Just a thing for people with a perverse interest in this sort of thing. Just be aware of this sort of thing. It's an outlier sitting out there. These cases usually don't go very far.

Video

Video: A Fair(y) Use Tail - a short film by Eric Faden - YouTube (NOT a Disney movie) Presented by Media Education Foundation (MEF) • Deals with copyright law - kind of poking fun at Disney • The organization put it together as not exactly a fan of our current copyright situation. Also used those clips from Disney as a form of fair use. • Copyright is created as public good - not the private good of the creator. The good is the incentive to create. It inspires creativity. Helps with creation of art, knowledge, etc. Can't copyright ideas. Among the types, there's individual works, compilations, derivative works, etc. Also there are benefits of registration. You don't HAVE to register your work nor put a notice on it, but it will benefit you.

Intrusion

a. "Invasion of a person's solitude or seclusion by physical, electronic, or mechanical means" - Someone invading your personal space, basically. (i.e. recording someone's conversations in a private place, taking pictures of them, shooting video, etc.) b. Intrusion is a tort of newsgathering NOT publication. Therefore, you don't have to share it. Just the fact that you took the picture or intruded with voice recording, etc. Publication is irrelevant. What does that mean in terms of the 1st Amendment? It primarily protects publication rights. So, you don't have much 1st Amendment protections here. Therefore, you don't have the 1st Amendment rights to cling to here. Probably strongest in your own home. c. Test that most courts use: i. Did the plaintiff have a "reasonable expectation of privacy?" Did they reasonably think, "This is my personal space?" ii. EX: 1 Someone bursts through the door of Room 222 in Reese Phifer and pans the room with a video camera. Did we have a reasonable expectation of privacy? No. We're out in public. Anyone could stroll in off the street. This is not your special place. No tort here. iii. EX: 2 If you're driving on University Blvd. Someone rear ends you. You get out of the car and sit on the curb, injured. A reporter rushes at you with a microphone. No reasonable expectation of privacy here, either. iv. EX: 3 You go to the Strip. Buy a drink or two. Someone shoots some video of you as you walk around the bar. No, you're in a public bar. v. EX: 4 You go home to your house in the Historic District. You are hanging out there. Violate Tuscaloosa City Ordinance by having an upholstered couch out on the porch. This is seriously an ordinance. Sitting on it. Having a cocktail. And, someone shoots some video of you there. You're on your own property. No, because you're outside on your porch. In public essentially. That's more a question of trespass law. If anyone can reasonably see you, not your private place. vi. If you're inside the house and someone takes pictures of you through a curtain, you FINALLY have reasonable expectation of privacy in your own home. vii. What if you have a closed office door and file drawer? If someone goes in there and looks through your files, that's a violation. Not for your employer that owns it, though - they have right to search. viii. In your hospital room, you have your door closed and paparazzi show up. You have reasonable expectation of privacy here. In your room when you're ill. Yes. ix. EX: In California of a woman who was in a wreck. NO expectation of privacy when on the side of the road injured. However, once in the helicopter taking her to hospital, yes. They had hidden mics and stuff for a reality show. This violated the reasonable expectation of privacy. Didn't matter if they ran the footage or not. x. EX: Person leaving Port-a-Potty whose photo was taken - privacy was NOT violated in another state. Alabama found a contrary ruling, though. There was intrusion where a newspaper photo showed a woman in a carnival funhouse where her dress blew up over her head. "A person does not forfeit privacy merely b/c misfortune happens in a public place." Most courts would not find this, however. There are unique cases like this all the time. xi. Also, Google Street View cars. Google was worried about this with the anomalous precedent working against them here in our state. They did it anyway though. xii. We don't need to know specific cases. Just be aware there are deviations. xiii. EX: 60 Minutes is trying to interview you as you walk along the street. Stick a microphone in your face. Even though it's aggressive and over the top, if it's one time, it's legit. If it continues and they're essentially stalking you, though, then that's not ok. EX: Widow of JFK had a paparazzo follow her all the time. It was stalking. But one time doesn't count as this.

• Elements of Copyright Infringement - The plaintiff has to prove these when they sue.

o 1. Valid copyright and plaintiff is the owner - If you're filing suit in federal court, you would have had register at this point. The owner part can be complicated if there are multiple potential authors, etc. - Films, songs, etc. Multiple parties taking part in the creative process. o 2. The defendant had access to the work. Had to have COPIED from you. It's not just that they created something like you. Doesn't count in copyright law. It does in patent law though. If something isn't circulated mainstream, etc. it can be a big issue as to whether they had access to that work. If there's no access, there's no possibility of infringement. A lot of movie producers if you send in a script won't even open it and stamp return to sender to avoid having a suit saying they saw it before. o 3. Substantial Similarity - The works must be substantially similar. The question is, "How close is too close?" Lots of things are alike. • How do you tell? They have some tests: • Ordinary Observer Test - To an ordinary observer (the lay juror) do these works seem similar? This is not a super good way to do this. Just put them beside each other and ask if they seem similar. • Dissection Approach - This is sort of like what they did with Blurred Lines. Take out all the things that are not copyrightable, see what's left, and then compare the two works. Must carefully analyze each work. In Blurred Lines, they dissected out the actual production of the songs - can't copyright a "feel." They just compared the sheet music, etc. What are things you would dissect out? o Ideas - The movies "13 Going on 30" and another movie are similar based on the level of idea, but not the plot, dialogues, etc. o Facts - Two movies based on a historical event might have similar facts, but that doesn't mean they infringe. Facts are the same for everyone. o Scenes a faire - Things that just have to be there. Stock scenes. Like the cop movies like Bad Boys, Lethal Weapon, etc. There are two partners thrust together and they hate each other and then friendship develops, gun battle, car chase, romance, etc. Doesn't mean one thing is infringing the other. Same way with country/western songs. • See what you have left after this and see what of that is substantially similar when deciding copyright infringement.

• Now, we will analyze on the basis of the Central Hudson case.

o 1a. Use of electricity is legal. It's a legal product/service. The speech concerns a lawful activity. o 1b. Is the speech misleading? You'd have to look at the ad. Depends on what they're claiming about their product. The Court determined that the ads were not misleading. Not deceptive claims about the service. o The advertiser has now met its burden. Now, the burden falls on the state of NY. o 2. Substantial interest - They claim that the energy crisis is one. Is that a good enough reason for the gov't to act in some way? Yes. We need energy as a society. There's a substantial interest to do something. Yes. (Each factor is considered independently.) o 3. This is where things get sketchy. Is this advertising ban going to help keep down on the use of electricity? Seeing an ad for Alabama Power does not induce us to turn on all the lights, etc. However, the Court was willing to give the gov't this one. They said, "Advertising works." This test has become more rigorous since 1980. Now, they require a more direct linkage between this and the harm you're trying to prevent. o 4. This is where it fell down. It was overbroad. They were banned from advertising in total. Completely. They could have allowed them to run ads encouraging the cutting down of electricity use. It was too broad. If they just focused on ads that encouraged overuse of electricity and didn't limit the ones focused on conservation, it might have stood. Any time there is a total ban on speech, often not constitutional. Often too broad. They failed here. o The ban goes down. It's unconstitutional. Central Hudson wins the case.

• Another analysis - Posadas (1986)

o A company that owned casinos in Puerto Rico. They were legal in Puerto Rico - legal to gamble. It creates jobs - economic development. Also, you want people to come from far away, lose money and then leave. You don't want local citizens to do a lot of gambling b/c then the local economy loses money. It can also lead to social problems. Puerto Rico was trying to do this with bringing people in. Puerto Rico passed a law saying casinos could not advertise toward locals. You couldn't target the local citizens with your advertising. They were forced to structure their advertising that way - travel magazines, cruise lines, digital, etc. It goes to court b/c Posadas challenged it. o 1a. Yes. It was legal in Puerto Rico. o 1b. No. The speech was not misleading. "Come down to the Posadas Casino to have some fun." Accurately describing the services. o 2. Now, the burden shifts to the government of Puerto Rico. Was there substantial interest? "Excessive gambling by local citizens will infiltrate organized crime, prostitutes, disruption of social order, etc." It was a substantial interest. The Court found it so. • "You regulate advertising when you don't have the political will to regulate the thing itself." - Why not just get rid of gambling? Money. o 3. Does the law directly advance the government interest? The citizens of Puerto Rico were aware of the existence of casinos down the street. However, even if they're aware, if you keep hitting them with advertising - frequency/repetition - it will make them want to go more. If we stop the focus on the local citizen, fewer of them are going to gamble. So, yes, this law does directly advance the government interest. The Court said, "Look, Posadas, you believe that this criterion is true because you spent the money and litigated this case. You're here." Using their presence in the court against them. Nasty move by the Court. o 4. Is the law more extensive than necessary? Puerto Rico argued that they were allowing them to advertise anywhere on this planet except for the local people, who were the potential problem. Is it narrowly tailored? Yes. Local is a very definite geographic zone and it's actually where the problem comes from. You have plenty of other options. It's precisely tailored to achieve its ends and nothing more. o Puerto Rico wins the case. That's all it takes. This is why advertising is not fully protected speech.

• All of this does not apply to a broad swath of advertising called puffery. Stuff that's objective - audience understands it's not meant literally. Overstated, hyperbole, not an objective claim. Anything under puffery is not considered in the realm of deceptive advertising. EX: "Our roadster is the sexiest European on the road." "Our cookies are fudgealicious." You can also say, "The best restaurant in Tuscaloosa." The assumption of the FTC is that consumers interpret it as, "Oh, they're just saying that." They know it's not proven. Consumers immediately discount that kind of statement. Don't pay attention to it.

o Also under puffery are liquor ads like "atmospheric ads" where you're surrounded by beautiful people who want to hang out with you. Obviously not expected realistically by consumer.

• How long does it last? Way too long in the estimation of most law studies, etc.

o Author's Life + 70 years - Receive royalties your entire life and also 70 more years after you die. You can ruin your grandchildren's lives with all that money. Used to be 50 years, but recently extended. The argument against this is that there is no "incentive to create" once you're dead. Counter to the purpose. o For corporations, etc. - It's 120 years from creation. o Stuff after this is in the public domain - ANYONE can make a movie out of a Shakespeare/Jane Austen novel, etc. because those things have now passed into the public domain.

• Most important copyright issue for us - Fair Use

o Defense to Infringement - No payment, no permission. You can use parts of someone else's work. In any media business, you're involved with this. You want to use something out of someone else's work. So, the prime purpose of copyright is to give a monopoly to the copyright owner. This tries to mediate the relationship b/w this and free expression. Academic/educational uses have a little more leeway than commercial uses.

• FTC & the Regulation of Advertising

o For many centuries, there was no regulation of advertising. "Caveat emptor." You didn't have any protection against false advertising or anything else. By the early 20th century, this changed across the world in many countries especially with industrialization, etc. Increasing influence of mass media, etc. Among the things that the gov't does to protect the consumer is the creation of the FTC, the Federal Trade Commission. This is the major agency that regulates advertising. o It's an independent federal agency. It has 5 commissioners. They are appointed by the President. To make it nonpartisan, only 3 at one time can be of the same political party.

• Who owns copyright?

o If you just do it on your own, you own the work. The individual creator. o The problem comes when you work for someone else. When you're an employee? The company owns the work then. Your employer owns it, and it's called a "work made for hire." You own nothing. Writing a news story for a news organization, ad for an ad agency, etc. If you're working there on a regular basis, etc. then it's "work made for hire." o The tricky part comes in with freelancing. If you're not a classic employee - say you take on a project for someone. Not directed by them/using their equipment, etc. It's tricky. If you want to retain rights for something you're doing for someone - Just get it in writing. You may want to take elements of that work and use it for another client, etc. You just need to retain the rights. Give them a license to use it, but get it in writing that you own the rights. This will not work for major news organizations, etc. This probably WILL work for local "mom and pop" type establishments. Just be aware that this can be an issue.

Types of Copyrighted Works

o Individual Works - Something you create on your own. o Compilations - These are individual non-copyrightable elements and putting them together to put a copyright on the whole thing. "Taking individual non-copyrightable elements and combining them into a copyrightable whole." • EX: We could make some money by putting together a guide to fine dining in Tuscaloosa. A pamphlet. Evangelines, Chris Hasting's new restaurant at Embassy Suites, Epiphany, Kozy's, Chuck's, etc. The elements are not copyrightable. The website, phone numbers, etc. However, we have engaged in selection and arrangement to put them all together as a whole work. By doing that, we can claim that it's a copyrighted work. Other people can't copy ours. They can make their own as long as it's not ripped off, but they can't copy. A thin level of protection we have. Also, KBB that's put out for used cars, etc. They use their own judgment to compile it, not just an algorithm. Same type of situation. o Derivative Work - Taking a work and translating it into another medium/form. The HP films are derivative works from the books. Only the original author has the authority to make these or license someone else to make it. Or, a cartoon character doll made based on it. This is a derivative work. Also, translating a work is a derivative work.

• Suppose you have to name a new trademark. How do you do that from the legal/marketing perspectives? Think about this: Legal - The Trademark Continuum:

o It goes from very strong marks to very weak marks. o Most powerful types are Fanciful. Not real words. You invent them. Not in the dictionary. You made them up. EX: Verizon, Lexus, Cialis. They do this, in part, because it's a more powerful mark to shut down competitors who come anywhere near their trademark neighborhood. o Next as good are Arbitrary marks. This means the trademark has nothing to do with the product. Doesn't connect with the product. Just arbitrary. EX: Apple. There is no relationship b/w that and computers. Amazon - no logical connection to an online bookstore and this region. o Now, this type is not as strong. Suggestive marks. These allude to or suggest some quality/characteristic of the product, etc. EX: Glide for dental floss. Coppertone for sunscreen. Not super good marks. They're ok, still distinctive, but not as good. o Now, really not good are Descriptive marks. You don't want to be in this category. Just states what it is. Not distinctive in any way. Anyone else could name their product something very similar to yours but you have no recourse. Whereas, in Fanciful, if they do that, you can shut them down. EX: The Golf Channel, E.R. for a show about an Emergency Room, etc. However, just b/c you have a descriptive mark, you can still win a case. If you have a Descriptive mark and you are VERY successful with your product/marketing, you can acquire "Secondary Meaning." Over time, consumers have begun to associate the name with your product. It has acquired another meaning, which is you. You do start in a hole and have to dig yourself out, though. EX: "KFC" - just chicken fried in the Kentucky manner but has gotten secondary meaning. Also CNN (Cable News Network) - terrible name but has acquired a secondary meaning now. o The absolute worst are Generic. This means you're already just naming the product. EX: "Cellular Telephone Brand" telephones. Clearly generic. Just purely says what the product is. Around the .com revolution, many people got stuck with these (drugstore.com), but an advantage is that it makes it easier to find. Any of your competitors can do something very, very similar, and there's nothing you can do about it. o Ponder these end goals when creating a trademark.

• Campbell vs. Acuff-Rose Music (1993) - Significant case in fair use

o Luther Campbell had a notorious crew called the "2 Live Crew." They were prosecuted for obscenity at one part and were misogynistic, etc. They wanted to do a hip-hop parody of "Oh Pretty Woman." (Pretty woman walking down the street...etc.) They write a letter to Ancuff-Rose offering to pay a fee to do the parody. They said no thank you. "We cannot permit the use of a parody of 'Oh Pretty Woman.'" They did it anyway. The U.S. Supreme Court reprinted the lyrics: • Guitar riff at beginning - borrowed that; "Pretty woman walking down the street" also borrowed; then went off on their own o Acuff-Rose sued. In the process, they remodeled fair use law. Supreme Court issued a really interesting decision. They walked through the analysis. • Nature of Original - They said "Oh Pretty Woman" was creative, a hit song, etc. Not Beethoven or anything, but a fairly creative endeavor. • Nature of the Use - Artists have to make a living. There's nothing wrong with a commercial use. They said that wasn't the end of the line for them. A novel sentiment at the time. The thing is, you can't just rip it off. You have to do something with it. They said, "It's better if you do a transformative use." A value-added use. Taking something old and add something new. "Adding new expression, meaning, or message." This is actually doing something. Everything comes out of everything else. "Poems are made out of other poems." Nothing just springs from nothing. If you just do it get attention or avoid the drudgery of working up something fresh, not good. But transformative use is good. Even if it's commercial, they might still protect it at this point. They hinted the work was transformative. They argued that they flipped it and made something new out of it. Took the "white," romantic fantasy, fluffy stuff of the original and brought it down to street level with unplanned pregnancy, etc. • Extent of Use - They took the riff and one lyric line. Not a huge percentage of the song. They took the heart of the work. The "good stuff." The Supreme Court said, interestingly, they might still let them get away with it. This was a parody. What is the most important thing to do when you do a parody of something - clue the audience in to what the original work is? You must "evoke the original in the mind of the audience." You might have to use the good stuff to do this. • Harm to Market for the Original - Especially in the case of a parody, it's not likely you will be harming the market. People will want the original if they like it. Not some silly parody version. The fact that it's transformative MEANS that, that there's not harm to the market for the original. It doesn't make sense to say it's harming the market for the original just because the use was commercial. No substitution factor here. "2 Live Crew" seemed to win here, but they sent it back down to a lower court for re-evaluation. They settled. Supreme Court had made it pretty clear that "2 Live Crew" was going to win. • In the years since this case has been decided (over 20 years) - transformative use has become the critical factor in helping you win a case. Do something with it that's new and creative in some way. Do something different with it. It's the overwhelming analytical consideration in these cases now.

• Going back to the JibJab video. Going through the analysis:

o Nature of the Original - The original is the Woody Guthrey "This Land is Your Land" song. Reasonably creative work. Piece of Americana. Stood the test of time. This factor tips towards Guthrey. o Nature of the Use - They get views and make money off of this. They also sell stuff on their website. They're trying to get hits and make money. On the other hand, it's transformative. They changed most of the words and the idea of it. It adds political analysis and viewpoints. Maybe not highly intellectual, but it's definitely transformative. This factor tips in favor of JibJab. o Extent of the Use - They took a fair bit. They used the heart of the work. They used all the musical material and some of the original lyrics. A little is good; a lot is bad. It's not a parody of the song itself. It's a parody of the politicians. They're using the song to attack someone else. The portion with the Native American could be a comment on the original work of Guthrey, but overall the song is not the target of the parody. It's political satire using someone else's song. Not justification to use a lot of the song as in the Campbell case. This factor goes in favor of Guthrey, the copyright owner. o Harm to the Marketplace - Believe it or not, it probably turns a lot of money each year. Licensed in films, sheet music at schools, etc. They probably make a decent amount of money. Will this work cut into it? Is it a substitute for that work such that it will derail their profits? No. This factor goes in favor of JibJab. o So, it's a pretty even analysis. Is this fair use or not? Depends on whoever hired the better counsel. He thinks it ought to be a fair use as a normative matter. However, most federal judges wouldn't let this go through based on the extent of the use. They took a huge amount with no good reason without paying a licensing fee. A lot of judges would declare it not to be fair use.

• Bundle of Rights that Copyright Grants a Creator

o Right of Duplication - You and only you have the rights to make copies of that work. Used to be very hard, but now it's super easy to make copies. Used to be an industrial regulation, but now applies to all people. o Right of Distribution - You and only you can sell these copies. Why do you need both of these? Two different people could be doing these things. You want to have the right to go after both of those individuals. o Right to Create Derivative Works - Translation, movie out of a book, etc. You have the right to grant this. o Right of Performance - This mainly pertains to musicals (A bar owner often has to pay a fee to play popular songs at the bars. Taylor Swift and Billy Joel/etc. take in enormous amounts of money each year just for these royalties. o Right of Display - Pertains to fine art - the way their art is portrayed/presented, etc. Artists have this right.

• Exam Review

o See review sheet. o 50 questions, 2 pts. Each o Multiple choice, T/F, and short answer o 3 units on this exam. One is privacy (CH 7-8) - Read through all the notes/textbook. Focus on: • 4 Torts of Privacy: False Light, appropriation, intrusion, private facts(check) • Under what circumstances does each tort arise? Also, the injury in each and distinctions • Laws affecting • Physical harm cases • We didn't get to the solder of fortune cases - don't worry about • Infliction of emotional distress - Hustler case limited this under 1st Amendment • Hustler v. Fallwell • Don't worry too much about Florida Star v. BGIF o Intellectual Property (CH 14) • What kinds of things are copyrightable vs. not • What it takes to get/keep a trademark • Trademark continuum - Know that. From arbitrary to generic/descriptive. Understand that and place a product into one of the categories. • Factors to prove in copyright case. Infringement elements. • Fair use - REALLY KNOW • 4 factors and transformative (kind of a 5th factor) o Advertising Material • Don't worry too much about evolution. Just know at one time, advertising was not protected at all. By Central Hudson, it was a moderately protected form. Up until the 60s, courts did not recognize it as protected speech. • Central Hudson test - Determines if ad protected by First Amendment • Powers of 1st Amendment • What makes an ad deceptive • Competitor Remedies • Know the hit man case. That was the anomaly. The ones like the other. However, the media usually wins those types of cases. B/c courts don't accept "The media made me do it" argument. Under the 1st Amendment they have to protect expression. • "This Land is Your Land" - The main thing against it was how much they used - quantity factor. Also it wasn't a parody. The TooLiveCrew didn't use that much and also had transformative use.

• How to tell if your trademark has been infringed?

o The Infringement Test: "Likelihood of Confusion" - If there is a likelihood of confusion where a consumer may buy someone else's product thinking that it's yours, there has been an infringement of trademark. If it's close enough, it's infringement. The courts have ~10 factors that go into this, but we don't need to know. Just need to understand the concept. How do store brands get away with it? EX: Centrum vitamins and "Century vitamins" with same color scheme, etc. How does that stand? o A big thing is "Genericide." If you allow your trademark to be used for a wide variety of products, it can dilute your trademark. Make it harder to be infringed upon, etc. Using "Coke" for all soft drinks, "Google" for all searches, etc. Trademark owners don't like this. If this persists over time (esp. in printed sources) and people lose the meaning of that mark, it can become generic, and the trademark owner can lose their rights. A court has to decide that they're generic. Put these ads in trade publications for journalists, lawyers, etc. • EX: of how they try to prevent this. Kleenex has placed an ad just to advertise their cause. "Do not erase." Kleenex should always be followed with a registered trademark symbol and "Brand Tissues." • EX: Xerox. Please help ensure. Use Xerox only as an adjective; not a verb or noun. Keep the name Xerox in the office and out of the museum. • This is how they're trying to combat it. This is called "policing the mark." It's how they ward off Genericide. They often send cease and desist letters, etc. The Styrofoam company has a team that monitors all improper uses and sends out letters. • It's a double-edged sword. You want brand recognition, etc. but you also want to protect your trademark. How to properly use a mark: A proper adjective with a noun after it. i.e. "Google search engine" or "Xerox copiers" o EX: Breathalyzer, kitty litter, Botox, etc. are all trademarked names. Should use PC names instead.

More

o The right to publicity was born out of privacy. You have the right not to be filmed and have it not be used in an advertisement unless you sign a consent. That's not always true if you're in a public place, public event, or visible on public grounds, etc. There are exceptions. There are issues if filming people from a news story. EX: "If they shoot overweight people for a story about being obese, they shoot them from the waist down." Avoids a lot of issues. o For him, he only publishes with signed releases. There's just too much else that can go wrong.

• There is a case that really lays out the answer to this question: • Central Hudson (1980)

o This case gives you the framework to know if the government has gone too far, if they can regulate it, etc. The State of New York ordered utility companies to cease the use of advertising that promotes electricity. Alabama Power advertises - They're a monopoly. Why? They're a regulated industry. They like to keep their customers happy. It's a PR gesture more than pure advertising. There's no alternative for customers, so want to keep them happy. Central Hudson is the NY equivalent of this. In 1980, they and other companies were ordered not to advertise. There was an energy crisis in the country - severe. You could only go to the gas station certain days of the week. This was part of NY's response. Shut down advertising that would encourage people to use more electricity. Central Hudson challenged the policy. The Supreme Court agreed - Central Hudson won. "Commercial expression also assists consumers." Court said advertising is a good thing. Helps them know prices, influences competition, etc. o The Court came up with the Central Hudson Test: • The burden is on the advertiser to prove. • 1a. Does the speech concern lawful activity? - The product you're advertising must be legal, etc. If not, not protected. • 1b. Is the speech misleading? Does it mislead the public? Is it false advertising? If so, not protected. • If you succeed on 1a and 1b, then... • The burden shifts to the government. • 2. Government must show a substantial interest in regulating. This means a "good reason." Not a great reason. This is sort of like intermediate scrutiny. Slightly more involved form of this. More baroque. • 3. Does the law directly advance the government interest? - You can have a good reason to do something and then you could pass a law that doesn't help that problem. It's like the means and the ends. You have to choose the right means to the ends. It needs to actually help solve the problem they're dealing with. • 4. Is the law more extensive than necessary? This is sometimes referred to as a concept that a law is "overbroad." Similar to narrow tailoring of the law. Must hone in with precision on the problem. Can't take on too much. • Must prove all of these. Otherwise, the law is unconstitutional.

Regulation

o To what extent does the 1st Amendment allow regulation of advertising? • This is a tough question. Advertising is somewhat protected speech. We need to go into case law. For a long time in our history, advertising was not protected speech AT ALL. Through the 1970s. Not part of the 1st Amendment. Why? You're just selling a product to someone. Just business. Not part of a grand theory like self-realization or something. Gradually, that began to be chipped away. Like NY Times v. Sullivan - One of the 1st where they protected an ad.

o What the FTC does - It has a number of powers:

o What the FTC does - It has a number of powers: • Prospective Remedies - Can try to head off problems in advance • Staff Opinion Letter - If you're applying an advertising campaign, you can write a letter to the FTC office asking if it's okay and what they think. You can get pre-clearance if you want to. Keeps you out of legal jeopardy. • Advisory Opinion - Taking it up a level. Slightly more formal version of this in the process. You have to jump through more hoops. It actually goes into the public record and says you cannot be sued by the FTC if you follow the advisory opinion. Makes you immune from suit. • Industry Guides - These are broad, general guidelines telling advertisers what they can/can't do. A few years back they came out with one for bloggers. What if a blogger gets a free product and review it on their blog? They are supposed to reveal that they got a free product or were being paid to discuss it. Other examples: If you use the phrase "Manufacturer's Suggested Retail Price," it should be a real price that people actually pay for that good. Not just used to make a sale look good. You can't jack up the price of the first item for "Buy One Get One Free." When you get endorsements, they must reflect the honest belief and experience to the endorser. It can't be something that can't be substantiated by the advertiser. The celebrity can't say something the advertiser couldn't say themself. The experts you use for endorsements must actually be doctors/experts, etc. • Rules - The most formal of prospective remedies. These are, in effect, laws passed by the FTC. Administrative law. Congress delegates some powers to the FTC, IRS, etc. They can actually pass rules that have the force of federal law. As if Congress passed a statute. • After-the-Fact Remedies - Can take steps after false advertising has occurred • Consent Decree - The most common one by far. An advertiser runs an ad campaign, the FTC says they don't like it, and then the advertiser says they will stop. They sign a piece of paper called the consent decree and stop whatever the ad campaign is, etc. Usually no money changes hands. It's like a settlement in a court case. Easiest way to end these things. 9/10 cases are settled by this. • Cease and Desist Order - The FTC can issue this. It's kind of like a quasi-injunction. Similar to that. Tells the advertiser not to do that any more. If they continue, the FTC can fine them. Now, it's around $10,000 a day. This may not solve all problems if the company is insanely wealthy and keeps pulling in millions of money - willing to pay $10,000 per day. o EX: Gericault cures "tired blood." FTC issued a cease and desist letter to them. Tired blood is not a real thing. • Injunction in Federal Court - They can actually get an injunction against that advertiser. Telling them not to run ads/make claims any more. This will be enforced b/c if they violate it, they are liable to go to jail. This is a serious step, and they don't take it often. But, in the right case with a health angle for people, etc., they might. • Corrective Advertising - This is a serious step. It forces the advertiser to spend their own money to put out a campaign saying they misled them before. The FDA did this with Yaz. Advertisers hate this. You are forced to tell the public that you lied to them before. The most famous case - Listerine. For years, they claimed that Listerine cures colds and sore throats. It came to a head. The FTC said, "You don't cure colds. You can't do that any more." They had to launch a $10 million ad campaign to tell people that they misled them. The ads MUST use this language: "contrary to prior advertising." Listerine did NOT want to use those 4 words. Listerine appealed and got that language struck on appeal. They had to produce a series of ads saying they had been lying to them. They took a creative approach, and it turns out it didn't really hurt their brand.

Right to Publish

o Who owns the right to publishing and distribution/profit from it? Copyright holder, person who created original content, any sub-licensees, or the place where the picture/article/poem/content was first published? • It's a trick question. It can be any/none/all. Depends on a lot of things. Release, etc. Principle of copyright - If you create it, you own it. That's true unless you're doing it as part of work for someone else. WORK MADE FOR HIRE: If you work for a company and do something as work made for hire, the company owns that work. If he works for Cooking Light and writes an article or takes a photo as part of regular work for that publication, they own it. However, most people now who produce content for magazines, etc. are freelancers now. They own the copyright. They publish it by getting licenses to it by the creator. They have a lot of contracts with all these people. You outline how the work will be used, etc. as part of that contract. Remember, content is currency. It's how we make money. It doesn't matter the medium/it matters the content. They consider Cooking Light as a brand. Not so much a company. If he repurposes the content as part of a new program, he CAN'T do that unless the contract specifies it. He can't make any more money out of it other than the original use unless the contract specifies that he can. • There is law on this principle. NY Times v. Tasini - Probably the biggest change in copyright law in 20-25 years. • Tasini is a class of freelance writers who wrote for NY Times and many other publications. In the 80s the companies were compiling articles and putting them on Lexxus Nexxus. This is the Lexxus Nexxus rule. They stripped it from all of that and put it in a database/CDROMs, etc. The writers argued successfully that that was a new product. That the use of their writing had been changed from original use in a new form. That the NY Times didn't have rights to do this. They won this case. Now, contracts say they cannot use work in "any new medium now invented or future" or something like that. Writers don't want work published elsewhere for profit by the newspapers/magazines they did it for.

• What exactly is deceptive advertising? What constitutes it?

o You must have a misrepresentation. The ad has got to be true in the big picture as a whole. o Furthermore, that misrepresentation has got to be likely to deceive. This is a low bar. Like trademark - "likelihood of confusion." Means you don't have to prove that anyone was actually deceived. Just need to convince a court that it's likely to deceive. o **In a material way (it's significant enough that it matters to the consumer/would change their decision, etc.) What if there was a picture of a car and they got the shade of blue off a little bit than in person? That wouldn't be a material thing. • Material and nonmaterial: • When they shoot ice cream ads, they don't use real ice cream because it would melt under the lights. That's a false view of your product, but not material. We buy ice cream for the taste, not look. • This is material: A TV ad for a window-cleaning product - They took the windows out because of lighting issues. An actress was standing in front of an empty window frame saying, "Look how clean it is." That's material. You would think it was so clean you couldn't even see it. • Campbell's Soup - They used to put marbles in the bowl to push the veggies up, etc. It is a misrepresentation/material. It looks like it's chock full of veggies. Creates a false impression about the soup. It's got to matter/be significant to the consumer. o To a reasonable consumer, (average consumer) (of the group the ad is targeted toward ex: a reasonable child) o To his or her detriment - It must harm the consumer somehow. The harm can just be, "I bought something that didn't perform as I anticipated it would." • You must read all of these together for the standard definition of deceptive advertising. It must be a misrepresentation that is likely to deceive in a material way to a reasonable consumer to his/her detriment.

• Competitor Remedies

o Your competitors can sue you too, and they may be more likely to do that. By making a false claim about your product, you may be taking a slice of their pie/share of the market. They CAN sue you under the Lanham Act. • It has a false advertising provision. "Misrepresenting the nature, characteristics, qualities, or geographic origin shall be liable in a civil suit." This law allows your competitor to sue you, and they will. It covers trademark, too. Creates a federal tort remedy for competitors. EX: Pom Wonderful sued Coke in 2014. Coke had a product with pomegranate in their product and Pom Wonderful thought that was infringing on their territory. Also, Minute Maid sued Tropicana. Had an ad that said it was "pure pasteurized juice as it comes from the orange." In fact, they often froze the stuff before it came to market. MM won and got an injunction.

• JibJab.com "This Land!" video - Compare this with the factors of fair use; The owner threatened to use these guys for using it, but the suit never happened. • Before the exam, read over the FAQs on copyright.gov and also read through the handouts he gave on copyright principle. Also, the handout on fair use. See if you can figure them out yourself based on the info given before you read the verdict, etc.

• Fair Use is a defense to infringement. It's saying you borrowed someone's material but you did it fairly. Factors to Fair Use: o Nature of the Original o Nature of the Use - Commentary, educational purposes are best. However, you can get protection for commercial use if you transform it. Changing it or adding on to it in some way. Adding new expression, meaning. • "Transformative Use" was engrafted on by the Campbell court. It's a huge one, though. o Extent of the Use - How much did you take? Better to take just a little than a lot. Sometimes you need to take more though to clue the audience in, as in a parody. o Harm to the Market of the Original - Are you harming this or are you not affecting the original?

• Don't forget, after a certain amount of time the work falls into the public domain and copyright expires. • Benefits of Registration and Notice: o Not required legally, but very useful. o Registration - You can just take your recording and fill out form online, send check and a copy of the work, etc. They don't have to evaluate it. They just stamp them. It's automatic. If you send it in, you get a registration. How is this helpful? Ideally, you want to do this around the time you create the work. Don't delay.

• Jurisdiction in Federal Court - By registering, you get this. A federal court can take your case on your copyright. • Statutory Damages - You can obtain statutory damages. A court can assign/award you a certain amount for the infringement you experience. You might have a hard time proving how much damage you suffered based on infringement. So, this can award you $750-$30,000 per infringement. This is huge. You don't even have to prove how much you've suffered. It's hard to prove actual harm in a copyright case. This is useful. • Hard to prove: You may have downloaded numerous free songs online, but would you have necessarily actually bought it? No, often no. This makes it hard to prove how much they suffered b/c you wouldn't have bought it. • Attorney Fees - It can cost hundreds of thousands of dollars. Also, in this case, you can make them pay for your lawyer. Just by registration. Usually in American law, each side pays for their own lawyer. This is big. • "On Record" as the Author - You are on record as the author. You have a registration with the U.S. Copyright Office as the author. If something circulated on social media, you can prove you created it. Profit may come from this, etc.

News

• Kentucky is 2 games away from a 40-0 season. But Kentucky is already warning people not to use the mark, 40-0, which is a registered trademark. However, the University is opposing the mark because he registered the trademark. The University is opposing it. How do consumers perceive that? As a brand or as a statement of fact? Read more about this. • Transformative use is adding new meaning/expression. It helps the person who borrows content under free use. Fox News is arguing that social media alone should supply the means for a fair use when sharing someone else's content on Facebook. Social media is an inherently transformative medium, argues Fox News. This would change the landscape of copyright enforcement online. This is a theory they're trying in court. In copyright infringement, it doesn't matter if you attribute or add Credit: X. You still shouldn't be able to use someone else's work without payment or permission. Why is Fox News weighing into a decision about this on social media? Fox was sued about posting someone else's photo on Facebook. It was firefighters raising the flag over the 9/11 remains. The photographer sued. Fox argued that social media was inherently intertwined with commenting and criticism. He's not sure that this will stand. • A libel suit has come out of American Hustle. A science writer, Paul Bradeur, who claims he was defamed by something Lawrence said. She told her husband that microwaves take the nutrition out of food. Bale's character responds, "That's BS." She said, "Look. I read an article by Paul Bradeur." He claims he was giving interviews claiming microwaves were safe. He thinks he was misquoted. Colombia Pictures has brought defenses - Reasonable people would not think anything that came out of the mouth of that character was a true statement. The other side says you can't have the "ditzy defense." This could be an out for all times that people could try to exploit. What if you put words in the mouth of a ditzy character in a work of fiction? Should you have to worry about libel? However, she just read. Even ditzy people can do that. A lot of people might think the scientist actually said that.

o Four Criteria to Determine Whether You Have Fair Use:

• Nature of the Original - What is the thing you're borrowing from? Is it highly creative? Or...? How long was it? How creative was it? You will have less leeway borrowing from Harry Potter than a news story. What about the effort in creating it? How worthy of protection is it? Stock table vs. a play or novel. • Nature of the Use - Why are you borrowing it? Is it educational/critical/common vs. is it a commercial use? The educational one gets more protection. Kinkos was copying course packets of textbooks for students to buy. Tried to argue that it was for educational use, but they were selling it so really commercial. Didn't stand. • Extent of Use - How much are you taking? Little is better than a lot. Courts weigh this on both quantity (% of the work you take) and also quantity. Did you take the "good stuff"/the "heart of the work?" You can still lose this factor if you take a small amount but it's the good stuff. It's case by case. There is no "okay" amount across the board. It's relative to the work you're taking it from. • EX: LANS (L.A. News Service) sued everyone in sight after a riot in L.A. after the Rodney King trial. Some thing happened. LANS had a helicopter over the area where the riot was happening. A truck driver was stopped and rioters took him out and beat him almost half to death. LANS had the only video. All other news orgs. wanted to use it, and did. They sued everyone in sight. The defendants argued it was fair use. They only took one minute out of the 2 hours they shot that day. The problem was that this was the "good stuff." Most courts said, "Yeah you didn't take much quantity, but you took the quality." The fair use defense failed. • EX: Harper & Row v. The Nation - Book publisher was just about to publish Gerald Ford's memoirs. He had issued Richard Nixon a blanket pardon for everything he had ever done wrong, preemptively too. He left office and wrote memoirs. Harper and Row want to publish memoirs. The Nation got a hold of it and put out a spoiler. Released the details. Was a big sales driver for the book. Published a "book review" revealing the secrets before. Harper & Row sued. Had a contract with Time Magazine, who would publish an excerpt from the book once it was published. Then, Time cancelled the contract. Harper & Row sued and won. The Nation said they only borrowed 150 words out of a gigantic book. IT didn't matter. It was quality, not quantity. They lost. • Harm to the Market for the Original - Are you hurting their sales by your borrowing? Have you hurt the market for the original work? Because of what you're doing, will people buy less of theirs? You might substitute for the. Get in the way of their sales. This happened in the Harper & Row case. o No single factor is determinative. They just add it up mathematically. Just do what's right given the overall picture. No algorithm.

News

• News: Meet the Sports Editors featuring special sports anchors/news people, etc. It's 6:30 in room 216. 2 sports editors from USA Today and Sports Illustrated. • Blurred Lines verdict came down - If you listen to the 2 songs by Marvin Gaye and Robin Thicke, you can tell they're not the same song. But there are similarities. There could be issues with personality here - Marvin Gaye is an icon and Robin Thicke is seen as kind of sleazy. This could sort of be the jury's thinking subconsciously. "Get a hit, get a writ." o He doesn't think this verdict will stand on appeal. He doesn't think the songs sound similar enough - you can't say they have the same "feel" or ambiance. o JNOV - Judgment notwithstanding the verdict - Judge could decide that jury got it wrong, and they will have to go the other way. • Jessie Ventura sued writer of American Sniper book and won a huge judgment. It's going up on appeal. Former Minnesota governor. The book claims Kyle he punched Ventura in a bar after Ventura made disparaging remarks about Navy Seals. He denies this and said it's defamation. Floyd Abrams is one of the most famous First Amendment lawyers in the country - was on the Pentagon papers case. What's wrong with offering a portion of the book's profits to someone that it defamed? Libel is supposed to compensate someone for injury. Not give them a piece of the pie. Trying to establish if actual malice occurred and if it was defamation going on. • Picking up with torts of privacy. Definitely make sure to master the chart we came up with, then go into each in more detail. • Sean Kelley talked about the right of publicity tort last time. • A few more torts... Garbage torts - not part of privacy.

News

• News: The FCC has come down on the side of net neutrality today. From Washington Post: FCC approved strict new rules for Internet providers. Making sure web remains level playing field. Illegal for companies to slow down streaming moveis, games, etc. Prohibited from establishing "fast lanes" for some websites for an extra fee. Also applies to wireless carriers as well as cable. A lawsuit will probably come out of this. • Copyright lawsuit in Los Angeles with "Blurred Lines" by Robin Thicke. Claiming he copied Marvin Gaye. Tried to show that similar pop songs have the same lines, chords, feels, etc. Sound the same on a superficial level with party sounds, base lines, and cowbells, etc. However, he brought a piano in the courtroom to show the differences. You can't copyright a feel, though. If you look at the copyright-able elements of the song, most people would argue it's probably not infringement.

Diagram

• Private Facts o Type of Interest Invaded: Right to keep private information or secrets private - Right to keep certain things that are true out of the public eye o Is public dissemination required? Yes o What is the main defense? Newsworthiness • Intrusion o Type of Interest Invaded: Right to a secluded moment o Is public dissemination required? No; If it's been done, you've already intruded whether you share it or not. Once you took that photo/recorded/etc. o What is the main defense? Privacy expectation unreasonable • False Light o Type of Interest Invaded: Right to be portrayed accurately in front of the public - being presented as you really are o Is public dissemination required? Yes; It must go out to a lot of people - widely disseminated. Not just one or two. A mass audience. o What is the main defense? Truth • Appropriation o Type of Interest Invaded: Right to control commercial uses of one's persona o Is public dissemination required? Yes; The essence of the harm is that they've taken something from you and used it for false endorsement, etc. o What is the main defense? Consent (Also, using it for news purposes.)

Private Facts

• Publication of private facts - In essence, you can be liable for publishing something truthful. This is counterintuitive. Something that's personal, humiliating, private, etc. The media win most of these, but sometimes you can lose. Not a super big threat, but if you lose it can be bad. You publish something truthful about someone that is deeply personal/humiliating. We thought truth was a good defense before now. Not here. The test is this: "Publication must be highly offensive to a reasonable person, and the publication is not newsworthy." Courts can be very generous with what is considered newsworthy. • Typical fact patterns that generate this kind of lawsuit: (Similar to what generates libel lawsuits, but in this case, it's true) • Sexual matters - sexual preferences, behavior, etc. • Physical or mental health • Eccentric behavior - and no particular reason to publicize that fact • Criminal activity • These are true about someone just deeply humiliating or personal. • Oakland Tribune Case - Newspaper in Oakland, California published a column about a student body president of a local college. Revealed that the person had had a sex change. Unknown to anyone on this campus. In the 1970s. She was formerly a he. The courts saw this as a private matter. Individual had gone to great lengths to conceal this, and there was no particular newsworthy reason for the newspaper to publish this. The newspaper lost the case. It was deeply personal. • Another case - Attempted assassination of President Ford. Right after Nixon. Someone tried to shoot him in San Francisco. A guy saved him. Grabs his arm. Saved his life. It's later revealed that the guy who saved him was gay. However, the man was not happy about having that publicized. He sued for private facts. In this case, he lost. The big difference was, "This is not a private fact." According to the court. He was widely known in San Francisco in the gay community. Gay activist. Had been written about in the gay press there. The national media was just further publicizing something that was already widely known in one community. So, it was not a private fact in this case. Not revealing something personal. • Suppose you publish something about George Clooney's mental health or Britney Spears? It's public interest. It's newsworthy, sufficiently, and you would not be in violation of this. It's just if it's something not newsworthy. • This Private Facts tort often comes into conflict with the 1st Amendment. How do courts handle that? You are supposed to be able to publish things that are true. Private Facts vs. 1st Amendment: • Cox Broadcasting vs. Cohn - In the Supreme Court in 1975. In this case, an Atlanta TV station published the name of a gang rape murder victim. Her father then sued. He won in the lower courts, claiming it was a private fact. The problem was that the broadcaster got the name from the court proceedings. It was a matter of public record who the victim of the crime was. The court said it needed to be protected since it was a matter of public record. The court said, "Truthful information from public records is protected by the 1st Amendment." In this case, it overrode the private facts tort. There has been a debate for a time to publish the names of rape victims or not. This case suggests on a purely legal level, though, that it's protected speech. Ethical or not? - debatable

Torts of Privacy

• Starting in on Privacy - another tort (civil wrong) o Another way someone can sue you o Torts of Privacy (make sure you know THIS DOES NOT EQUAL "constitutional right to privacy") • (The word privacy is not in the constitution. So what does this refer to? This began in the late 50s - famous cases involving contraception. Can the state prevent people from buying contraceptives? The argument was that the state should not intrude into that. Some of the right to privacy ideas came here. Then, later expanded into the very controversial area of abortion - the real concept of right to privacy came from Roe v. Wade.) o Torts of Privacy • 2 people wrote a piece in the Harvard Law Review - Samuel Warren and Louis Brandeis - 1890 - Came up with the idea that the media and the yellow journalism were too intrusive into people's private lives. His daughter was getting married. Had a party for his daughter. Some newspapers reported on it. Said who was there, the décor, etc. Warren was very upset by this. Anti-Kardashian of his day. He didn't want his private life in the press for everyone's scrutiny. Said there ought to be a law against this. Wrote possibly the most successful piece of legal writing ever. Created a theory of law from this article. Out of this, the 4 torts of privacy eventually came out of this. Their strategy - they wanted to create new area of the law. However, the common law worships the past - so this is a problem. Stare decisis. How do you get around that? Create a new area of the common law while seeming not to. They said, "Everything we're proposing here is already in the law if you look hard enough - trespass law, copyright law etc." Didn't say, "Here's my new shiny idea" but framed it as elaborating upon areas already existing in the law.

Trademark Dilution

• There is another form of trademark action that has recently come along now. Much scarier. Trademark Dilution. Only applies to famous marks. Must establish that your mark is well known by the general public. If you do, you can bring a dilution action against other people. Even if they aren't your competitors/the public isn't confused, doesn't matter. Tiffany - the famous blue box. What if a restaurant opened down the street - Tiffany Restaurant? You wouldn't be competing or creating customer confusion. However, Tiffany can sue for dilution b/c it takes away Tiffany's distinctiveness b/c so many businesses are now in the customer's brain. Makes Tiffany's trademark not so powerful. They can take away. VS went to court against a Kentucky novelty store called Victor's Little Secret. It was litigated to Supreme Court. Originally, said no dilution. Utah slogan "Greatest Snow on Earth." Wringling Brothers sued them for dilution but lost. Goldfish crackers and Nabisco came out a cracker collection that was cheese for Cat Dog and had some fish in there, too. Nabisco actually got an injunction on this for them to stop making the fish cracker. Many lawyers argue that this is too powerful of a statute, but it's out there.

Intellectual Property

• This is important. You will run into this in your professional life probably if you work in the media business. Why is it called intellectual property? It means that it's insubstantial property. Exists in a conceptual way. What kinds of law fall under this? o Copyright o Trademark (important for advertising and PR) o Patent - inventions, scientific advances, pharmaceuticals, etc. - Usually not media question o Trade secrets - Proprietary information about business practices; EX: Recipe for Coke; Also not a media question o Right of Publicity (Quasi-Intellectual Property) • Trademark - What is it? The Nike swoosh, Polo horse, etc. Designed to tell you who made the product. You associate the product with other good products, if you like Nike for ex. It's an indicator of source. Definition: "any word, name, symbol, or device used to indicate source." (Technically, there's also servicemarks for services like hotels and stuff - We don't need to know this.) o Can be a name like Nike, a symbol like the swoosh, a moving image like MGM roaring lion, a sound like the Law and Order cha-ching, colors like the Crimson Tide, as long as it communicates to the audience where a product, etc. comes from somehow. Who made it. o These are worth a tremendous amount. Apple, Nike, Google, Coke, etc. If you destroyed every physical asset Coke ever owned, they own the trademark Coke. It's so valuable. Physical assets pale in comparison. Also, McDonald's golden arches are hugely valuable. Worth so much money. Companies spend a lot to protect these. o Trade dress - This can be the appearance of the product/way it's presented. There can be trademark protection. Liquor bottles and the way they're presented - Absolut, Crown, Patron, Maker's Mark. The look of how the product is packaged - also subject to protection in this vein. o The main source of this trademark protection is the Lanham Act. You can get protection under the common law when starting a business just by using the trademark. The stronger though is with federal registration, which is what the Lanham Act permits you to do. How to go about federal registration, which provides you national protection: • 1. Priority - You have to get there first. SOL if someone else already has it or something similar. You need to do a search and hire a trademark lawyer. Make sure someone else doesn't already have rights. • File an application with Patent and Trademark Office in D.C. Other people can dispute your application if they think it's too close to your territory. You have to fight them. EX: Ivanka Trunk filed a number of applications using her name in conjunction with real estate ventures of hers. Donald disputed them and won. Knocked all of them off. • Government Approval - Get a certificate showing your trademark is officially registered. Gives you many rights. • 2. Must keep using the trademark. Continued use. If you stop using it, it can be a problem. Wendy's stopped using "Where's the beef?" Someone else picked it up. Successful b/c Wendy's abandoned it. As part of continued use, you have to pay a renewal fee every 10 years to the federal government to keep using it. • Intellectual Property o A trademark is basically anything that indicates source. Branding. Indication of source is the key function of trademark. o Supposed to indicate a consistent level of quality that the product company offers o You may want to register your trademark federally. You have to make sure you're the first person to claim that trademark.

More

• Time Inc. is about 30-40% higher than the industry average on what they pay for images from freelancers. • If a writer wants to write a book and use some content he wrote for a magazine in the book, he can't. Unless he licenses that content from them or asks them to publish the book. • Cooking Light's currency is recipes. One big exception to copyright law. You can't copyright recipes. Ingredients lists. This is mostly true. Intro flowery language to a recipe CAN be copyrighted, and the directions that accompany a recipe can if they are REALLY different. This would be more of a patent. Not a copyright. If Coke wanted to patent its recipe, it could, but it's afraid someone will steal it. The Tasini type contract didn't make it to recipe developers. Cooking Light began extending rights to recipe developers. They define the use - important part of contracts. They defined it too narrowly originally. CookingLight.com and MyRecipes.com - wanted to gather all recipes and put them online around 2008 to create a good advertising forum and resource for searches, etc. Because they had defined the use and that didn't include publishing the recipes on MyRecipes.com, they couldn't do it. They had to pay several thousand developers an additional $100 per recipe to use them in this new business venture. • Now, new contracts are overly broad and cover every possible use. • Last week, an advertiser wanted to purchase a repurposing of recipes from previous years. Wanted to use the recipes in an ad in the magazine. They couldn't because the contract didn't include clauses about using it in future technology, etc. • When someone misused an image and violated copyright issues, it was $50,000 in fines. They ended up paying off photographer $2,000. The employee got fired. And you can get fired for a lot less. A lot is riding on this. Important for our jobs! You can't make money off of the content you procure if you don't use proper contracts. • Copyright law falls under Article 2 (of the First Amendment?) in the Constitution. LOOK UP.

Advertising

• Two big constitutional issues that tie into this: o Is there a Right of Access to place advertising under the 1st Amendment? • Is there any part of the law that says you can require someone to run your ads? • Generally, the answer is no. You can't force your advertising on an unwilling medium. They don't have to, and they don't even have to give you a reason. This is because freedom of the press belongs to he/she that owns the press. The medium owner has absolute rights to accept/deny advertising. • How to answer any legal question: It depends. • SO, there is one exception: • Section 315. We learned about this. Political ads. If one buys one, you have to give opportunity to the other to buy an equal time. Only broadcasters, over the air TV and radio.

News

• We will not cover CH 16 - Telecommunication Regulation - in the book. We will skip that. We will cover CH 7, 8, 14, 15, and then take Test 2 on that material. Omitting a couple of chapters. We will not take it on April 2, most likely. • Torts of Privacy: o False Light - a bit like libel, but different. The key difference - it's not always negative. It just doesn't present the person in a correct light. EX: Woman who was "stoic" in the face of losing her husband. o Intrusion - You violate someone's "reasonable expectation of privacy." You have this in your own home, hospital room, your office, etc. You shouldn't have people secretly taping you, listening, etc. We went through hypotheticals of when you have a reasonable expectation of privacy. • Secret Recordings - If you secretly record someone's phone conversation. One party knows it's happening and the other doesn't. This is a special type of situation called "participant monitoring" - when one party knows it's going on and the other doesn't. Is this a crime? It depends on the state. In most states, it's not. Most don't have a statute against it. Criminal law requires a statute in place against it. The assumption is that if Tom was calling Ben on the phone, he could be writing it all down technically. So recording is not different. However, a few states make it a crime. Florida does. Also, Linda Trip was Monica Lewinsky's friend who she called to confess details of the affair. Linda had been recording. Maryland had a statute against this. She was almost prosecuted. • So, we have established that it IS sometimes a crime. Most states, no. Some states, yes. However, is it a tort? Something can be a tort and not a crime. Remember, civil and criminal law are separate. Classic case of this. Dietemann v. Time, Inc. He was like a plumber. He was a quack doctor that would "diagnose" people by holding his hands over them, etc. Some people from Time went over there pretending to be patients. Took secret pictures and secretly recorded him. Published an article about what they found. Did he have a reasonable expectation of privacy? Yes. He was in his home. He won the case. Even though it wasn't a crime in that jurisdiction, it was a tort. Even though he was using his home in a business capacity - he didn't charge for this stuff. The stipulation. If he had been charging, it might have been difference. It was determined: There was a reasonable expectation of privacy that this guy had in his home, and it was intrusion. It was a tort. • How about broadcasting? If you're a radio DJ. You put people live on the air and do a hoax on them. Like tell them they won the lottery, etc. That's not ok to do that in broadcasting context. If you do it over the airwaves, FCC regulates it. It's a violation. Your station can get in trouble. You have to let the person know they're on the air. What about shows like Cops where the press goes along with the cops? "Ride alongs." It's probably not ok to go into someone's home and film in these instances. You don't have a right to be on that person's property. You are probably committing intrusion. This covers intrusion. Moving on to tort of privacy #3.

Sean Perry Lecture

• Who has the right to publish? • Who controls their image? • When are the rights to likeness violated? o How something is used - out of context, etc. o Protected attribute - a name, a physical appearance, etc. Someone has to use your protected attribute to violate this. An Asian group posted a picture of herself on Flickr. Virgin Mobile used it in an ad in Australia. Sued them. For a violation of likeness to occur, you must have something you've taken from them - protected attribute. "Here's Johnny." A toilet company used that phrase to sell their port-a-potties. He had rights over that likeness and no one could use it. That is what the court ruled. o Exploited purpose - A UCLA player sued for his likeness being used without his permission in a sports video game. This is an example of this. This is capitalism. You do it for money. Or you do it for some other profitable reason/financial gain. Another way you must constitute a violation. They took his likeness without his permission and used it to sell video games. o No consent - If you do not have consent and use someone's likeness for exploited purpose, you don't have much of a leg to stand on. Reasons that you need release forms. o An artist painting with Rick Rush, a Tuscaloosa artist that went to Augusta and saw Tiger Woods winning the Masters for the first time. Tiger Woods people argued that the artist wasn't allowed to use his image. Claiming they have a right to publicity over the usage/content/message of their image. Tiger Woods lost. The courts defended it based on First Amendment/free speech. This is one exception to these rules. o Who's protected and doesn't have to get permission? Journalists and the newsgathering operation. Photographers, videographers, etc. o Cooking Light just put Michelle Obama on the cover. And people thought it was controversial. A court would not consider them a newsgathering organization in most instances. They have to get permission to use likenesses. Only people have likeness claims. Food, corporations, etc. do not have likeness claims. Corporations cannot have a claim, only on behalf of a client or something, etc. o It's ok to use someone's likeness in a news article related to the content. It's even ok to advertise with the image if it's related to the content. It's just not ok to take that image and use it to advertise with something else. o A family's picture - stock photo - was used in an article about fertility. Did not mention family. Court ruled that this was ok. Other courts have ruled that if there is no reasonable relationship between the photo and the subject, that is not ok. o If you are approaching what you think may be a gray area, just get a release. CONSENT WILL NEARLY ALWAYS PROTECT YOU. When in doubt, get a release. • Episode of friends where Joey does a modeling campaign and it ends up being used as a campaign for herpes. The face of herpes. This is an example of when you could be sued. If he didn't sign a release to use his image the way they want to. Get permissions to use your likeness, where you will use it, when and how long, permission to alter the image, etc. "Permission to the use photo with the use of any published matter in conjunction with such photographs." Usually also a harmless and indemnify clause saying you will hold them harmless for any use of the image that might come up. o Even with this, you often can't use all of a performance. Zucchini - was a cannonball artist. World's famous cannonball. You can't broadcast the entire performance. Full performance is not fair use, and it infringed upon his likeness. If you're a journalist covering a concert and want to cover whole thing, if you publish the whole 10 minutes of a dance recital, etc., you may have violated someone's likeness rights. Fair use is not all use.