Entertainment
Law Outline
I. First Amendment Values and Analysis
a. The two views of the underlying purpose of the 1st amendment.
i. Holmes
1. Based on the idea of the marketplace of ideas.
ii. Brandeis
1. Focuses on civic virtue basis that it is essentially
needed to have an informed electorate who can
make political decisions, public platform is needed
to have this.
b. Scrutiny
i. Content based laws
1. Laws that focus on particular types of speech
ii. Strict scrutiny
1. Freedom of speech is considered a fundamental
right, hence the reason strict scrutiny applies
2. Using strict scrutiny will most likely result in a law
being struck down. Highest form of scrutiny the
Court can give.
3. Intermediate Scrutiny (important government
interest has to be furthered by this
regulation....hardest to predict how the Court will
fall on the regulation), Rational Basis Test
(legitimate government interest “...usually upheld)
are the other forms of scrutiny (in descending
order). Look at Con Law notes for better
definitions.
c. Relevant Brown v. Entertainment Merchants Association
i. Uses strict scrutiny (that is, unless it is justified by a
compelling government interest and is narrowly drawn to
serve that interest.)
ii. Important points
1. Finds video games qualify for 1st amendment
protection
a. Analogous to books, play, tv, movies
b. Uses plot and literary devices similar to other
medias that are protected.
c. Under our Constitution, moral judgements
about art is for the individual to make, not
the Government.
d. 1st amendment principles do not change due
to a change in media.
e. The government has no right to make a
content based restriction
f. There is also a categorical approach that
relates to content based laws. 3 categories of
unprotected speech
i. Obscenity
ii. Fighting words
iii. Incitement
iv. The most basic of those principles is
this: “[A]s a general matter, . . .
government has no power to restrict
expression because of its message, its
ideas, its subject matter, or its
content.” Ashcroft v. American Civil
Liberties Union, 535 U. S. 564, 573
(2002) (internal quotation marks
omit- ted). There are of course
exceptions. “‘From 1791 to the
present,’ . . . the First Amendment has
‘permitted restric- tions upon the
content of speech in a few limited
areas,’ and has never ‘include[d] a
freedom to disregard these traditional
limitations.’
v. California can argue that video games
fall under the categories.....the court
ultimately rejects this. (Violence and
animal cruelty does not fall under the
list).
vi. Is the list definitive?
g. Speech about violence is not obscene, cannot
get there by using similar words.
h. There is no tradition of specifically
restricting children’s access to depictions of
violence. Underinclusive is the word Myers
uses. Doesn’t apply to all kinds.
i. California must demonstrate that it passes
strict scrutiny.
j. Cannot be underinclusive or Overinclusive.
Court recognizes that protecting children is a
legitimate interest, the question is that
whether it is narrowly tailored....it rules that
it is not. Says it is underinclusive, because it
doesn’t include other media, and it but also
because it permits a parental or avuncular
veto.
k. As a mean to assist parents, And as a means
of assisting concerned parents it is seriously
overinclusive because it abridges the First
Amendment rights of young people whose
parents (and aunts and uncles) think violent
video games are a harm- less pastime. And
the overbreadth in achieving one goal is not
cured by the underbreadth in achieving the
other. Legislation such as this, which is
neither fish nor fowl, cannot survive strict
scrutiny.
l. California’s legislation straddles the fence
between (1) addressing a serious social
problem and (2) helping con- cerned parents
control their children. Both ends are
legitimate, but when they affect First
Amendment rights they must be pursued by
means that are neither seriously
underinclusive nor seriously overinclusive.
See Church of Lukumi Babalu Aye, Inc. v.
Hialeah, 508 U. S. 520, 546 (1993). As a
means of protecting children from portrayals
of violence, the legislation is seriously
underinclusive, not only because it excludes
portrayals other than video games, but also
because it permits a parental or avuncular
veto. And as a means of assisting concerned
parents it is seriously overinclusive because
it abridges the First Amendment rights of
young people whose parents (and aunts and
uncles) think violent video games are a harmless pastime. And the overbreadth in
achieving one goal is not cured by the
underbreadth in achieving the other.
Legislation such as this, which is neither fish
nor fowl, cannot survive strict scrutiny.
2. General law to take away from the case
a. Two different ways to approach regulation of
media
i. Categorical approach
1. Areas of unprotected speech
ii. Balancing approach
1. Balancing the state interest
against the first amendment
right
a. i.e. strict, intermediate,
rational basis
2. You will see the same thing later
with defamation/speech and
privacy
iii. There is a third appraoach
1. Absolutist view (Hugo Black)
2. Narrow categories of what is
and isn’t protected. Hard to
know what he would say about
Video games today.
3. Not really relevant because
there are no current justicies
that use this view.
a. Could use if you wanted
to argue how the law
should be.
3. Alito’s concurrence
a. Isn’t as certain that these (3) categories are
written in stone....shouldn’t necessarily
distinguish between video games and other
media, given the interactive nature of the
media.
4. Thomas dissent
a. Parental authority
5. Breyer
a. Looked individually at the video games
b. concerned that the majority's decision
conflicts with previous rulings
from Ginsberg and Miller. He contrasted the
previous findings regulating sales of
publications containing nudity to those of
violent video games:
c. more elsewhere if needed (wiki)
6. Point of the Dissents is that the case could possibly
shift because it is not unanimous by any means.
d. Three questions you must ask with First Amendment Issues
i. Is it protected speech?
ii. To what extent can it be regulated?
iii. What is good law and policy for the particular situation?
1. How should the government use these powers?
e. Burstyn Case
i. This case determined that the First Amendment protects
movies at a state/local level. Motion pictures are a significant
medium for the communication of ideas. (It was a crucial
legal event for the entertainment world because it rejected
the premise that simply because movie distribution was a
business for private profit, it did not enjoy the
constitutional freedom afforded to “speech.”)
1. Movies have a large audience audience,
immediacy...arugments for harm.
2. Licensing/Censoring
a. A form of prior restraint
b. The rating system is a voluntary system, no
governmental action.
c. Self Regulation by the Entertainment
Industry
i. Companies in the music and film
industries have voluntarily put rating
systems on themselves.
1. (1) MPAA created a production
code regime because of pressure
from interest groups
a. MPAA is not a
governmental agency so
they can have more
subjective movie standards
so it is hard to bring a First
Amendment action. The
First Amendment doesn’t
directly address this issue,
but the court says the
MPAA can’t be totally
arbitrary. After the case the
MPAA did change their
standard for the “X” rating.
b. There could be some
problem since there was no
scientific expert analyzing
the film, there was only a
bunch of parents on the
street.
c. The ratings seemed to focus
on the sexual content
instead of the violence.
d. You would have to show
that the MPAA is not
following their policy in
order for the court to have
any authority.
d.
f. Two Approaches to look at First Amendment
i. Balancing Approach (Balances the state interest against the
first amendment right)
1. Looks at defamation law. New York Times v. Sullivan
created a qualified privilege for anyone who publishes
statement about a public official (now pubic figure).
2. In order to show abuse of privilege the P must prove
a. Knowledge of falsity or
b. Reckless disregard for the truth
ii. Categorical Approach (Areas of unprotected speech)
1. Incitement is not protected. Yelling fire in a crowded
theatre.
2. Fighting words
3. Obscenity is another category not protected.
a. Miller Test is used to determine obscenity
i. 1. Average person with contemporary
community standards, would find that the
work, taken as a whole, appeals the
prurient interest
ii. 2. Measured by contemporary community
standards, the work depicts or describes,
in a patently offensive way, sexual
conduct or excretory functions
specifically defined by applicable state
law?
1. Need witness to testify here
iii. 3. Does the work, taken as a whole, lack
serious literary, political, artistic, or
scientific value?
iv. If the answers are yes then it is obscene
(tough test to pass)
iii. There is a third approach
1. Absolutist view (Hugo Black)
2. Narrow categories of what is and isn’t protected.
Hard to know what he would say about Video games
today.
3. Not really relevant because there are no current
justicies that use this view.
a. Could use if you wanted to argue how the law
should be.
g. FCC v. Pacifica Foundation
i. The Court accepted as compelling the government's
interests in 1) shielding children from patently offensive
material, and 2) ensuring that unwanted speech does not
enter one's home. The Court stated that the FCC had the
authority to prohibit such broadcasts during hours when
children were likely to be among the audience, and gave
the FCC broad leeway to determine what constituted
indecency in different contexts.
ii. Indecent vs. obscene
1. Seven dirty words (indecent)(intrusive)(access to
children)
iii. Licensing broadcasters are held to the indecency rule.
1. Find out what the exact rule is....look at holding
above. I think it is about the FCC’s ability to
regulate.
iv. The Miller Test applies to all other media (cable, satellite,
internet).
v. Other cases:
1. Red Lion v. FCC
a. Fairness doctrine, but has since been
abolished.
2. Miami herald v. Tornillo
a. Florida rejected the fairness doctrine in
newspapers
h. FCC v. Fox
i. Deciding that the FCC had the authority to change its policy
to clamp down on fleeting explitives, it was not arbitrary
or capricious, which was the statutory standard.
ii. The lower court’s decision on remand which found that
even though the FCC didn’t act Arb. And capriciously, the
rules that were announced violated the 1st amendment
because they were unduly vague.
i. Radio distinctions and protection of First Amendment SpeechRadio
waves are owned by the government and there is a requirement of
license from FCC
i. Two reasons for Radio Distinctions
1. Broadcast media have established a uniquely pervasive
presence in the lives of all Americans. Patently
offensive, indecent material presented over the
airwaves confronts the citizen in the privacy of their
home where they should be protected
2. Broadcasting is uniquely accessible to children
ii. Radio has their own indecency standards outside of Miller Test
II. B. Incitement/Tort Liability
a. This goes to the question, should entertainment entities have liability
for things that occur?
b. 1. Majority in Hustler case said that there might be liability for
incitement but it would have to be extreme situation. This is a fact by
fact analysis.
c. 2. Liability difference in theatre owner v. movie producer
i. (a) In the case where there was violence happening outside
theaters after a certain movie the theatre could be found liable
d.
e.
f.
g.
h.
for not having appropriate security, if they knew that movie
sometimes caused violence. So premise liability is easier case
3. Music Industry
i. (a) Music is hard to bring incitement case because there are
many different underlying meaning to lyrics of a song.
Negligence is not enough of a standard to cause liability for
physical injury in these cases.
4. Example Case -*Diane Herceg v. Hustler Magazine
i. This goes on to the question what if something bad happens
and a person thinks that same sort of entertainment had to do
with the bad thing that happened. Should entertainment
entities have liability for things that occur. Hustler magazine
printed an article called “orgasm of death” that talked about
choking while masturbating. The article said numerous times
not to practice the type of sexual pleasure. The question in this
case involves incitement. The judge said that this is more of
tort law than first amendment law.
ii. Should the content of the magazine have affect on if they are
liable? There is argument that it shouldn’t matter under the
tort theory.
iii. Majority holding said there was no incitement. But gave room
saying that in some cases their might be liability for incitement.
For instance the book called “Hit Man” was settled out of court
because the publishers of “Hit Man” were denied summary
judgment. The plaintiffs felt like there was incitement. Hit
man was a case where a printed publication could possibly be
incitement.
Would a tv or radio broadcast have more potential for an incitement
situation? There is a wider audience for tv and radio. An example of
this is where a radio station has a contest where a dj is at a certain
location and the first person who gets there gets $1000. A person
speeding to the scene kills someone. The family sues the radio station.
That is the Weirem case. The court found liability since the radio
station was inciting their listeners to do unlawful conduct.
In general there is not liability for incitement. For instance the
Encyclopedia of Mushrooms had no liability for people who ate
mushrooms and died.
When can an entertainer be held liable in tort for the actions of a
third party.
i. Usually, can’t there are exceptions though
1. When a “special relationship” exists between the
defendant and the victim of a third party intentional
criminal act. This relationship creates a “duty to
protect.”
a. This duty to protect can be triggered by
i. A contract
ii.
iii.
iv.
v.
Or
Placing the plaintiff in custody
Or
By taking other affirmative steps that
disable the plaintiff from protecting
himself against third party intentional
criminal acts.
b. There is an exception to the “special
relationship” requirement for tort liability:
i. When a their affirmative actions
“create a high degree of risk of [the
third party’s] intentional misconduct.”
1. Generally such circumstances
are limited to cases in which the
defendant has given a young
child access to ultra-hazardous
materials such as firearms. With
older third parties, court have
found liability only where
defendants have vested a
particular person, under
circumstances that made his
nefarious plans clear, with the
tools that he then quickly used
to commit the criminal act.
a. In every case that
“this”(not sure which
one) has found this, the
defendants have been
specifically aware of the
peculiar tendency of a
particular person to
commit a criminal act
with the defendant’s
materials.
b. Courts have not extended
this to the psychological
tool argument (ideas and
images).
ii. Even if the tort requirements are satisfied, the speech still
cannot be one that is protected by the 1st amendment
(would have to fall under one of the exceptions).
1. If above or below descriptions of the exceptions are
not sufficient, the case book does a good job of laying
them out on pages 94-100.
III. Sexual Content in the Media
IV. Violent Content in the Media & Liability for Physical Harm
V. Defamation: Common Law Doctrines & Constitutional Constraints
a. Prima Facie Case (what P must prove) – Publication of false and
defamatory statement of fact that caused damages
i. Publication – Communication of defamatory words to some 3rd
party
1. No cause of action if P is responsible for publication
2. Has to be intentionally or negligently
ii. False – P must prove that comments are false (change from CL
to present)
1. If statement is substantially true (only some details
wrong), no cause of action
2. P must prove the specific charges are false, D cannot
counter with proof of general bad character
iii. Defamatory
1. Traditionally, defamatory if publication exposed the
person to distrust, hatred, contempt, or ridicule
2. Modern view – statement is defamatory if it damages a
person’s reputation
3. Who can be defamed?
a. Any living person
b. Group
i. Large – no member can bring suit even if
comment is inclusive
ii. Small – Any member can bring suit if all
are referred to
c. Corporation – May maintain cause of action for
defamation that casts an aspersion upon its
honesty, credit, efficiency, or other business
character (even true for charitable organization
not operated for profit)
iv. Statement of Fact – Look to substance over form when
determining whether fact or opinion
1. Does the statement state or imply the existence of a
defamatory fact to a reasonable reader?
a. Yes – cause of action exists
b. No – no cause of action
v. Special Damages – SLANDER ONLY – some sort of pecuniary
loss (emotional distress as well)
1. Slander per se – 4 categories where no proof of special
damages req’d:
a. Imputation of a major crime – crime involving
moral turpitude
b. Loathsome disease (AIDS?)
c. Business, Trade, Profession, or Office – will affect
business
b.
c.
d.
e.
f.
d. Serious sexual misconduct
e. Even if you don’t HAVE to prove special damages
you still can recover for the economic damages
Broadcast defamation – libel or slander?
i. Courts have treated as libel b/c of potential to reach so many
people
ii. Many states have statutes that make this sort of defamation
slander
Extent of D’s Liability
i. Original Rule – D was only liable for damages due to his own
publication and was not liable for repetition by others
ii. Expanded Rule – Some courts also hold the original publisher
liable for damages due to a repetition that might reasonably
have been anticipated
You can only sue for defamation after the fact the defamatory
statement is published
Common Law Doctrines:
i. Has changed over time:
1. Common law: (2nd full paragraph on page 146) rules
of defamation
a. 1st. element: has to be of and concerning the
person (has to be identified)
b. 2nd element: publication (seen or heard by
other person).
c. 3rd element: Falsity (presumed in common
law)
d. 4th element: defamatory (injurious to one’s
reputation in one way).
Constitutionalized in Sullivan
i. Rewrote the law of defamation
ii. The court concluded that state law did not give sufficient
breathing space for criticism or commentary (specifically
about governmental officials).
1. For example, there is no requirement of damages in the
common law defamatory requirements...they were
presumed. This caused huge potential liability for
people possible criticizes a governmental officials.
iii. The court announced a number of specific rules (adds another
element):
1. 1st rule: 5th element:
a. showing of fault...actual malice must be proven
(at least to governmental officials involved in
Sullivan).
i. Subjective awareness that the statement
is false, either knowingly, recklessly or
reckless disregard of the truth (check for
correctly-worded definition – page 147)
1. Must be proven by clear and
convincing evidence.
ii. Also appellate review of whether there is
actual malice. More searching review
than appellate courts usually use. Double
check for evidence supporting actual
malice
b. What about individuals in the public eye that are
not in governmental office?
i. Curtis Publishing case: the court
expanded this requirement to public
figures.
c. Gertz case (private individuals)
i. The court was presented with the
problem with individuals that are not well
known at all. Person in the case was an
attorney.
ii. The court concluded that actual malice
does not extend to private individuals.
However, strict liability should not apply
either. So...the minimum standard is
negligence. A private plaintiff has to prove
negligence, instead of showing actual
malice.
1. Why?
a. Does not put themselves in
the public eye (Does not
bring scrutiny upon
themselves). Therefore,
they should be entitled to
an added protection.
d. Analysis
i. First question should be whether a
person is a public official or a private
person?
2. The court has also eliminated the presumption of falsity.
Now plaintiffs have to show falsity. Designed to tilt the
scales a little more in the favor the defendant.
3. There is also a change in damages (presumed vs.
punitive)
a. In order to get that, you must prove actual
malice, even if you are a private plaintiff. If you
are seeking more than the actual damages that
you suffer, you must show actual malice.
g. Two types of public figures
i. General purpose public figures
1. A household name (sports figures, entertainment
figures)
2. Commentary on any parts of their lives, and the
actual malic requirement will apply
ii. Limited Purpose Public Figure
1. Only involved in one specific controversy, but play a
specific role in that controversy
2. Only comments related to the specific controversy
are required to have actual malice shown
iii. * Once you become a public figure for a controversy, you
are always a public figure for that particular controversy.
h. Standards:
i. For a public official:
1. Actual malice by D
a. Actual malice = statement made with knowledge
that it was false or with reckless disregard of
whether it was false or not
b. Because want to encourage debate, etc.
ii. For a public figure:
1. Actual malice by D
a. Extended from public officials to public figures in
Curtis Publishing
2. All purpose public figure - There must be "clear
evidence of general fame or notoriety in the community,
and pervasive involvement in the affairs of society"
(Gertz) one who has pervasive fame and notoriety such
that they are public figures for all purposes and
contexts (Gertz); they have access to the media
a. Once a person becomes a public figure in
connection with a particular controversy, they
remain a public figure afterwards for purposes of
commentary on that controversy (Street v.
National Broadcasting Co.)
3. Limited public figure - public figure only with regard to
a particular set of circumstances; they either voluntarily
inject themselves or are drawn into public controversy;
public figures for a limited range of issues (Gertz)
a. Courts have had a harder time setting exact
standard for when one becomes a limited public
figure
b. Test for the limited public figure:
i. Has to be a public controversy
ii. Plaintiff has to play a prominent role
in that controversy
iii. There has to be a nexus between the
statement and controversy.
4. The public figure can defend themselves much easier can use the media to respond
iii. For a private figure:
1. Negligence standard
2. States choose this standard, but can't be strict liability
iv. Involuntary public figure:
1. The person has not invited the attention
2. Actual malice standard
3. Higher standard applies because we want to encourage
discourse - the 1st am is important
i. Private Figures
i. (1) States can’t impose Strict liability to private figures in
public concern, because there is a negligence standard. Aka
sloppy reporter
ii. * Davis v. Constantin
1. Man’s son died and war and father theorized the officer
in command new and planned it. Universal made a
movie based off the man’s story.
2. The court said there wasn’t actual malice since there
was extensive research done for the movie. The movie
was a docudrama not an actual documentary that holds
itself out to be telling the whole truth. Wasn’t trying to
be an actual depiction.
3. Davis, the man suing, wasn’t actually named in the
movie. If you know who someone is referring to then it
doesn’t matter if the commander is actually named or
not as long as they are identifiable.
4. This case shows that you can rely on the work of others
as long as they are a “reliable source.”
5. The disclaimer didn’t help universal much in this case,
what saved them was the actual malice standard. It is
hard for plaintiffs to prevail.
j. Threshold issue of Private vs. Public person (Dresbach and Street
cases)
i. How do we decide?
1. It’s a weight test, considering after all
circumstances.
2. Things to consider: Role of the person in the
controversy, how much public interest is in the
controversy, and whether the person thirsted
themselves into the controversy.
k. Three big issues of defamation law
i. Status of plaintiff (public or private)
ii. Truth is a defense in defamation law
1. Burden is on the plaintiff proving falsity
a. Has the P came forward with enough
information to porve the statement as false
(can reasonable minds disagree)
2. The dispositive issuse of Actual Malice
a. Does no equate to ill will (known as common
law malice)
l. Intentional Infliction of emotional distress - right of person to be free
from extreme emotional distress
i. Prima Facie Case - § 46 Restatement – 4 elements necessary to
impose liability:
1. 1. Conduct must be intentional or reckless
a. (a) Intentional – Purpose or Substantially Certain
2. Conduct must be extreme and outrageous – “exceeding
all bounds which could be tolerated by society”
3. Causal connection b/w wrongful conduct and emotional
distress
4. Distress must be severe
ii. Ordinary Sensibilities Rule – Must cause severe emotional
distress to a person of ordinary sensibilities.
1. If D has knowledge of P’s special sensitivity, use
subjective test
iii. *Example - Hustler Magazine v. Falwell
1. Parody in Hustler. Jury rejected the defamation claim
because there was no factual statement there, but the
jury concluded there was an intentional infliction of
emotional distress. The S.Ct. decided that the actual
malice rule of Times should apply to the intentional
infliction of emotional distress. So if you can’t sue
successfully for defamation it is difficult to win on
intentional infliction of emotional distress. You must
show that the publication contains a false statement
which was made with actual malice or with reckless
disregard to truth.
VI. Privacy Rights: Intrusion, Private Facts, False Light, Data Protection
a. An area of state tort law with the potential of First Amendment issues.
You have the states interest to protect individuals privacy against
i. Types of Privacy Law
1. intrusion
2. private facts
3. false light
a. very close to defamation claim with a few
differences
ii. They all share, that state law should recognize various ways
that people should be able to have
iii. Intrusion upon Solitude or Seclusion
1. A highly offensive intentional invasion of another
person’s seclusion or private life
2. Has to be intentional not just negligence
a. Ex. – eavesdropping, wiretapping, bugging,
persistent tele. calls, peeping tom, searching
woman’s purse, searching someone’s locker, or
handbag at a store
3. Elements
a. Has to be an invasion (whether physical or
technological)
b. Reasonable expectation of privacy
c. Intrusion was offensive to a reasonable person
i. Objective standard (ordinary
sensibilities)
4. Usually involves some physical or technological
interference with personal privacy. Committed by
someone who is usually committing a criminal act
(trespass, hacking email, wire tapping, etc.)
5. One area where the first amendment doesn’t really
give you a lot of room or a defense.
6. Can there be a claim in public? Usually no, but CA law
says that a person is liable for invasion of privacy when
there is an enhancing device used to get a photo or
sound bite
7. Example*Shulman v. Group W. Productions
a. Lady was in horrible accident. The nurse had a
microphone and had a camera in the plane that
took her to the hospital. Should lost on
publication of private facts since it was of public
concern. The second claim was intrusion which
she won on. The Defendants argued that this got
in the way of them covering news. Claimed First
Amendment argument. The court shot that
down because media could gather news without
violating this person’s privacy. This was a
physical intrusion that is actionable by anyone so
it doesn’t matter if this is a news gatherer. Ex- A
reporter can’t speed and when he gets pulled
over claim that he has a First Amendment
defense.***Probably one of the best claims to try
to win on. There won’t be any First Amendment
defense. NY Times rule doesn’t apply to this type
of claim.
iv. Public Disclosure of Private Facts
1. 4 Elements:
a. Public disclosure (has to be a wide publication
doesn’t have to be national)
i. Different than “publication” in
defamation cases.
ii. 1 third party isn’t sufficient, more than
repeating gossip to one person (like in
the neighborhood). Requires a broader
dissemination. Unclear on how many,
however, it usually isn’t a difficult
issue in entertainment law, because
the mediums are so far-reaching.
b. Fact was private and not generally known prior
to disclosure
i. As matter of law, facts contained in public
records are not deemed as private for this
cause of action
c. Disclosure must be highly offensive to person of
ordinary sensibilities (if the person knows that it
is highly offensive to particular person that is
enough)
d. Disclosure is not something of legitimate public
interest or concern
i. Line to be drawn is a debatable point.
1. Often going to be an important
question when evaluating this
tort.
2. Breach of Confidence – Person entrusted by another
with confidential info may owe an obligation not to
disclose. Especially when you are a preacher or
psychologist. This is a form of malpractice.
3. Constitutional Question – Court has not ruled whether
truthful publications (although embarrassing) are
automatically protected.
a. Media has argued that 1st amendment does not
permit recovery for disclosure of truth.
b. Publication of truth v. disclosure of true fact
(embarrassing)
4. Example *Ross v. Midwest Communications, Inc.
a. Victim was raped and tv did a documentary
showing that the person convicted of two other
rapes was falsely accused. They publicly
disclosed her name and old address in the show
they produced. Court said they showed her for
credibility. So there was a legitimate public
concern.
5. There is a significant 1st Amendment issue if this
tort is expanded too broadly...there are a lot of
private issues to people.
6. Most likely going to involve true facts. If a
statement was false, you can still in theory bring
this claim, but you might want to consider bringing
defamation or false light instead. Also maybe want
to be used if a person doesn’t want to litigate
(Meyers kind of just threw this out there at the end).
7. media organization does not have an liability of
reporting truthful information that was lawfully
obtained (states cannot bar publication of truthful
information contained in public records that are
open in public inspection).
a. Cox broadcasting v. Cohn
v. False Light
1. Published false statement of fact that only causes
embarrassment, not damage to reputation, bring false
light cause of action instead of defamation.
2. Burden of Proof (same as defamation)
a. Public Figure – knowledge of falsity or reckless
disregard (“Times Malice”)
b. Private Figure – negligence is general rule –
apply standard of state
3. Elements
a. Publicity: wide dissemination.
i. A way that it is different from
defamation.
b. Information that places plantiff in false light
i. Plaintiff has to be identifiable in the
statement.
c. highly offensive
d. Fault (public - falsity or reckless) (private
negligence)
i. Because of its similarity to defamation
law.
4. * The false details can make someone better than they
are, but it doesn’t matters still false light
5. * Cantrell Case
a. Numerous people killed in bridge collapse.
Newspaper in Cleveland wanted to do a story on
people after the collapse. Reporter says false
information about the Cantrell family saying that
Mrs. Cantrell said things but she wasn’t even at
the interview. The claim was there was a false
light invasion of privacy. Related to defamation
because it focuses on false info. The biggest
element in this case is the fictional
characterization of Cantrell. This doesn’t hurt
her reputation like defamation (no injury to
reputation) says but it does put her in a false
light
6. Also Spahn case.
VII. The Right of Publicity
a. Right of Publicity is distinct from the right of privacy, the RoP focuses
on the financial return and less on people’s feelings.
b. Elements:
i. Defendant’s use of Plaintiff’s identity
ii. The appropriation of Plaintiff’s name or likeness to Defendant’s
advantage
iii. Lack of consent
iv. Resulting in injury
c. Elements given by Myers in class:
i. Appropriation of someon’s name, likeness
1. Identifying characteristics
ii. Without Consent
iii. For private financial gain
1. Majority focuses on whether there was a
commercial purpose
2. Concurrence focuses on whether the act was
unconscionable.
d. There are two ways to look at right of publicity, looking if it should
last after death.
i. Protecting someone’s personal right. No the claim shouldn’t
continue after death
ii. Protecting someone’s commercial right to be able to collect
money for the use of their image. Then Yes the claim should
continue. Tennessee decided that right of publicity was a
commercial right. The rule depends upon the place the person
was domiciled during life.
e. Holdings from Cases
i. The misappropriation protects the value of the name not the
name itself. There was an exception for biographies of public
figures. You can’t tell these biographical stories without
talking about other people.
ii. A reporter recorded the entire act and then aired it on
television. Zacchini filed suit against right of publicity. Normal
reporting does not give rise, but they showed the entire
performance so no incentive to go to show.
f. Examples
i. American Heritage made a sculpture of the bust of Martin
Luther King Jr. and they never received permission from the
estate. According to the court you don’t have to be a public
figure but the court isn’t going to take away the right if you are
a public figure. There needs to be a commercial benefit of the
person who is using the unauthorized use of a person’s name
or likeness in order to be a right of publicity claim. The
measure of damages should be the value of the use of the
appropriated publicity.
ii. National Enquirer used Clint Eastwood’s name a lot and the
court determined they were using Clint Eastwood’s name in a
commercial way in order that people will buy the copies.
There wasn’t a legitimate news report. This case sets a scary
standard on what is legitimate news.
g. Expansion of Right of Publicity beyond traditional Boundaries:
i. Samsung had an advertising campaign that depicted a Vanna
White character as a robot. She didn’t give permission and
wasn’t paid for it. Was the appropriation only confined to
name or likeness? It wasn’t confined. The court said the law
protects celebrities rights of exploitation no matter how they
received their celebrity. This could open the door to
unnecessary claims of people who thinks something looks like
them. But it seemed quite obvious that the robot was Vanna
White and people assume that there is some connection there.
ii. Carson v. Here’s Johnny – Court said that even though Carson’s
exact name and likeness weren’t used, his identity was still
appropriated because it was associated/ recognizable. Doesn’t
have to be something officially said by the plaintiff.
h. No first amendment/absolute defense for news broadcasts or
media (zacchini v. Scripps-howard broadcasting co.)
i. Parody exception (not sure the parameters of this)
VIII. Intellectual property
a. A claim or right in some intangible form of information.
b. 3 broad categories
i. Patent
1. Protection for inventions
2. Doesn’t really apply to entertainment law
ii. Trademark
1. Brand information, marketing information, logos
2. Protected under federal trademark law
iii. Copyright
1. Protects created works.
a. Best illustrated by any entertainment
product you can imagine will be protected
i. Movies, books, songs, theatrical
production, choreography, computer
software, architectural designs, etc.
2. Most of these have to do with the transfer
(contracting) of rights from the creator to another
person (going from rights to copyrights).
a. You can be on either one of these sides, as an
entertainment lawyer.
c. Intellectual property clause
i. The power . . . to promote the progress of Science and
useful Arts by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings
and Discoveries.
1. Science meant knowledge when this was written in
the Const.
2. Author is whoever wrote or created the work.
a. Must be some limited level of creativity.
3. Writings is the copyright work
a. Has to be understood in its historical context
when there was relatively few mediums for
expression. Applies to more now, obviously.
4. Discovery is about inventions.
5. Limited times (most important element)
a. Congress has the power to pass copyrights
and patents, but only for a limited time. The
terms have been extended over time. (a sono
bono law added 20 years at one point)
b. Today it is life of the author + 70 years.
IX. Copyright Law & Fair Use
a. General Points of copyrights
i. Almost entirely a federal statutory scheme
ii. Power of Congress given by the constitution
iii. Why do we have copyright protections?
iv. We have copyright protection to create an incentive for
creative effort and to reward that creative effort.
1. It is costly to create entertainment, over $60 million to
create a typical movie.
2. The print version of a movie aka movie reel costs about
$1000.
v. If we didn’t have copyright protection someone could make a
low cost copy and the initial creators could not recoup their
cost.
b. What is copyright Material
i. Cases for class:
1. Protected:
a. Expression
b. Fictional Story
2. Not Protected
ii.
iii.
iv.
v.
a. Facts/research
b. Ideas (e=mc2)
c. Stock characters (background characters)
d. Stock scenes (background scenes)
To violate a copyright, you have to have copying
1. Must take something from the plaintiff.
2. Learned hand quote on page 334.
a. To demonstrate impermissible copying
rather than independent creation, the
copyright owner must establish that the later
author had access to the protected work and
that the later work displayed undue
similarity to the original creation.
i. Not quote exactly, but text that follows
b. You must have substantial similarity (Meyers
words)
c. No claim if there is a common source (two
people both using romeo and juliet...sharing
quotes or whatevever)(Meyers words)
d. No claim if there is independent creation
Extends to “original works of authorship fixed in a tangible
medium of expression” that is semipermanent
Originality
1. Must be independently created
2. Minimum amount of Creativity
3. What Can’t be copyrightable?
a. Facts
b. History
c. Ideas not fixed in a tangible medium
d. Sweat of the brow
4. Examples:
a. There was a kidnapping that took place. An
author wrote a book about the kidnapping.
Universal then made a tv movie about the
incident. The court said that recording facts is
not copyrightable, because they never created
the fact. The labor of research is not something
that is copyrightable. Originality is what really
matters, not how much time and effort is applied
Fixation
1. A work must be fixed in a tangible medium of
expression
2. It must be sufficiently permanent or stable to permit it
to be perceived, reproduced, or otherwise
communicated for a period of more than transitory
duration
3. Gain Copyright the moment the work is fixed in tangible
medium
vi. Bundle of Rights
1. Right to Reproduce
2. Right to Prepare Derivative Works
3. Right to Distribute
4. Right to Publicly Perform
5. Right to Display
6. Special Public Performance rights for Sound Recordings
vii. Infringement
1. Two things needed for infringement
a. Access
b. Substantial Similarity
2. There is no fault requirement. You can subconsciously
infringe without intent.
3. Access
a. The greater the dissemination of the work the
stronger the evidence for infringement.
b. Access can cause “subconscious infringement”
c. You can rely on circumstantial evidence to show
that there was access that allowed for the
copying.
d. Examples - There were two songs which were
very similar. The author of the second one used
the same motif of the first song, but claimed he
came up with it independently. The writer of the
second was aware of the original song because it
was a popular tune of the time. He didn’t
deliberately steal the song but the court found
that since there was access to the original and he
copied the song there was infringement.
4. Substantial Similarity
a. Need to show substantial similarity or actual
copying.
b. Showing that there is a common theme isn’t
enough for substantial similarity, better to have
specific instances.
c. Example - Denker created a play called Horowitz
and Mrs. Washington. Uhry created a play and
screenplay called Driving Miss Daisy. Both
stories were about jewish characters that had
black characters provide care to them. There
were certain things that were similar in plot but
there wasn’t enough substantial similarities.
There were only ideas that were in common, not
copying of the expression. If there were more
similarities then there would have been a better
case. These were both fictional works that
carried a common theme but the theme was
portrayed in a completely different way
5. Unprotectable Story Parts
a. Scenes a Faire – incidents, characters, or settings,
which are as a practical matter indispensable, or
at least standard, in the treatment of a given
topic. These are themes, all artists must work
from them.
b. Characters- Characters are only pieces to the
overall feel of the copyrighted work. Stock
characters will not be enough to show
substantial similarity. BUT if the expression of
the characters were copied then there would be
infringement.
i. Ex. Court found Wonderwoman’s powers
were similar to Superman’s
viii. Fair Use Defense (section 107 of the 1976 Copyright act)
1. Balancing Test (totality of circumstances)
2. Fair use has to do with the conflict before the First
Amendment and copyright law. This is a way that
allows a wide range of things that are unprotected.
3. Types of works that would fall into Fair Use, not
exclusive list:
a. Criticism
b. Comment
c. news reporting
d. teaching
e. scholarship/research
4. Factors of Fair Use
a. the purpose and character of the use, including
whether such use is of a commercial nature or is
for nonprofit educational purposes;
i. Facts that weigh toward Fair Use
1. News reports, classroom
purposes (However, these are
not conclusive, (not a per se
rule), instead, you still have to
run through the factors and
balancing test)
2. Parody – transformative (the
factors in 107 are not
exclusive...courts have
subsequently weighed whether
or not the work is
transformative...so analyze this
as well)
ii. Facts that weigh against Fair Use
1. For profit
a. However, profit or
commercial use does not
create a presumption of
non-fair use
2. Bad Faith
b. the nature of the copyrighted work;
i. For
1. Factual work, historical work
ii. Against
1. Unpublished (taken away the
author’s right of first
publication)
c. the amount and substantiality of the position
used in relation to the copyrighted work as a
whole; and
i. For
1. Small, quantitative amount.
2. Transformative.
ii. Against
1. “Heart of the work” is taken
d. the effect of the use upon the potential market
for or value of the copyrighted work.
5. Public Performance
a. Section 110 (read section 110:
http://www.copyright.gov/title17/92chap1.h
tml#110)
i. Protects showing movies in a
classroom setting (complete defense)
1. Has to be a lawful copy
2. In the course of classroom
meeting
ii. The Point is if you have a better
defense, you will want to use that
instead of going through the fair use
factors
1. What other defenses? However,
you want to go through the
factors on the exam.
6. Myers Breakdown:
a. Purpose – what is the meaning? Ex- news report,
parody, view movies
b. Character – Good or bad faith
c. Commercial/Noncommercial – Are they making
money or trading?
d. Nature – Was this factual? Or Creative?
e. Published – Unpublished cuts against fair use
f. Amount – How much did they take compared to
the entire Copyrighted work?
g. Substantiality – How important was what was
used?
h. Effect – Was there a harmful effect from use?
7. Example Case to show breakdown
a. *Sony
b. Brought by the Movie industry which was
worried about the new Beta technology. The
movie industry was worried because it made
possible the home taping of movies. They were
afraid that the machine was going to destroy the
movie industry. The movie industry sued Sony
because they thought they were responsible for
other people’s actions for using the machines to
make copies of movies. Sony sold the tools for
the infringement. In order to sue someone based
on that concept you must show that there is no
other substantial use of the machine. For
example, a photocopier can be used to infringe
on copyright, but it can also be used for lawful
uses. So you can’t hold Xerox liable. So Sony
defended the case by saying there are legitimate
used of the Beta machine. They showed that
some copyright owners gave permission to copy
works, they also showed that people were “timeshifting” and that is legal. Time-shifting is just
that people aren’t home and so they record the
show/movie and watch it the next week and
then they erase the show once they watch it.
i. The court concluded that “time-shifting”
was a fair use. Let’s go through the
factors:
1. Purpose- to view movies that you
were lawfully entitled to view +
2. Character- Since you are free not
bad faith +
3. Commercial- You are taping a
movie and then erasing so not
commercial activity +
4. Nature- creative works –
5. Published- They are already
published +
6. Amount- Usually the entire movie
is going to be taped –
7. Substantiality- entire movie –
8. Effect- If anything time shifting
brings more viewers to the movie
+
9. If you can show no harm then
there is a good argument for fair
use. The court held that there was
a fair use and in order to decide on
any other case you have to balance
these factors.
8. Example of how to handle Parody
a. *Campbell v. Acuff Rose
b. Acuff Rose has the rights in Orbison’s song
“Pretty Woman.” 2 Live crew wanted to do a
parody of the song, but couldn’t get
permission/license so they did it anyway. 2 Live
Crew did well with the song. Acuff brought the
law suit. The issue was whether it was a fair use
or not. Lets go through the factors:
i. Purpose- parody, so it was a commentary
on the original song +
ii. Character- they tried to get a license but
couldn’t +
iii. Commercial- They sold a lot of records,
but just because it is a commercial doesn’t
mean they automatically lose –
iv. Nature- creative work –
v. Published- it was published +
vi. Amount- they didn’t take a lot of the lyrics
–
vii. Substantiality- The heart of the work
seems to be taken but since this is a
parody you have to take the heart of the
work for people to know that (neutral)
viii. Effect- Did the defendant’s work
substitute for the original? NO There
might have been a market for a licensed
version of the song so that might be harm
so the court said they weren’t sure and
remanded the case for that issue
c. The court didn’t officially decide the case. The
case was settled out of court. Just because
something is commercial doesn’t make it fair use.
d. Is Sampling a song Fair Use? NO, even though it
is a small amount and transformative, you are
doing harm to potential market since the owner
could license/synch license their song for tv or
movies
ix. Ownership
1. Works for Hire – If an EE in the scope of their
employment creates a copyright then the copyright
owner is the ER
a. The Problem is determining an Independent
Contractor from Employee (works for hire),
Factors: (not Exclusive)
i. Look at employer’s control
ii. who provided tools
iii. who provided workplace
iv. the amount of input from both parties
v. Tax benefits and payment
vi. Can the employer give more projects?
vii. Skills required
viii. The source of the instrumentalities
and tools,
ix. The location of the work
x. The duration of the relationship
between the parties
xi. Whether the hiring party has the right
to assign additional projects to the
hired party
xii. The extent of the hired party’s
discretion over when and how long to
work
xiii. The method of payment
xiv. The hired party’s role in hiring and
paying assistants
xv. Whether the work is part of the
regular business of the hiring party
xvi. Whether the hiring party is in business
xvii. The provision of employee benefits
xviii. Tax treatment of the hired party.
xix. Key idea – is this someone who works
on his own who does projects for
different people or is it a person you
have on your staff.
b. When working as an employee, the copyright
usually goes to the person who does the
hiring, where freelance workers usually
reserve the copyright
c. You can have provisions in contracts that
specifies who is given the copyright.
d. Protect yourself by contracting for this before
work is started
2. Example Cases
a. *Community for Creative non-violence v. Reid
i. CCNV decides to contract with Reid to
build a sculpture for a parade. They have
an oral agreement with Reid to build the
sculpture. CCNV paid for the statue
material. After the parade it was given
back to Reid for repairs and then the
CCNV asked for it back. Reid refused to
give it back and filed for a copyright
registration. The question is was Reid a
employee or an independent contract
relationship.
1. A work made for hire is a work of
an employee under employment or
if someone gives there rights away
through contract.
2. 9 factors to determine work made
for hire
3. Court rejected CCNV’s control test.
4. As a general rule the author is the
party who actually creates the
work, that is, the person who
translates an idea into a fixed,
tangible expression entitled to
copyright protection.
ii. If someone hires someone to do a creative
work, most people would probably think
that the people that paid for the work
would own it. But it would still be with
the artist. You are not getting the copy
revenue. If you were making a movie you
would make them sign a contract that
spelled out the nature of their work.
iii. Say that someone hires an independent
contractor to do a website. The person
would get the use of the website but the
website designer would keep the
copyright. If it is an in house designer
then they would be an employee and it
would be a work for hire.
3. *New York Times v. Tasini
a. Group of newswriters claim that since they did
their articles as independent contactors rather
than “work for hire” employees, the licensing of
their works on the Lexis/Nexis and other
electronic databases violated the copyrights they
now retained under the 1976 copyright act. The
court agreed with the writers. The New York
Times then had to take out all of the independent
contractors articles or find the writers and get a
new contract. There was nothing in the original
contract to cover it.
4. Copyright comes with:
a. Power to make copies or decide permission
for copies to be made.
5. To state a tenable claim under © law, a plaintiff
needs to show that the submission moved beyond
the realm of “idea” and into the domain of
“expression.”
x. File Sharing/Third Party Liability
1. The Beta created a huge market for the movie industry,
initially though technology was viewed as a threat.
2. The music industry has been hit with major file sharing
issues
3. Is Napster Liable? Yes, because there wasn’t enough of a
legitimate use. There must be a substantial legal use.
They went through the fair use factors and found that
Napster caused harm to the market and was essentially
“trading” which was a commercial use.
4. Is Grokster Liable? Yes, because they induced people.
They were more decentralized with less control, but
they advertised as an alternative to Napster, the court
found them responsible by inducing others to infringe.
xi. Music Industry and Public Performance
1. Revenue from public performance is extremely
important to music industry.
2. Traditional Public Performance Infringement. Two
Elements to infringe on this right:
a. Performance
b. open to public or at any place where a
substantial number of persons outside of a
normal circle of friends and families
3. Transmission Clause says:
a. transmission of . . . the work to a place specified
by clause (1) or to the public, by means of any
device or process . . .
i. This applies to various clubs or social
organizations. They give licenses for
specific events.
ii. talks about television or radio broadcasts.
4. Exemption for bars and restaurants A bar and
restaurant - §110(5) This says that the bar cannot
charge fee if they want to get exemption. This applies to
recorded music. If there is live music you aren’t exempt.
This can only come from a radio or television
transmission. This allows the small business to have a
radio or tv playing when a customer comes in. NO CD
PLAYERS. The radio and tv broadcasters have already
paid for the royalties.
5. Live performances require a license from ASCAP, BMI,
SESAC
xii. Types of Copyright for Music
1. There are two types of copyrights for music
a. Songwriting/Musical Composition – This goes to
publishing. Public performance right only applies
to the this type of copyright, with one exception.
b. Sound Recording – Normally owned by the
record label. Only public performance right in
digital transmission, aka satellite radio and
internet. Doesn’t apply to traditional radio.
xiii. Copyright Term
1. Now – Life + 70 because of Sony Bono Act
2. 1923-78 – 95 years from creation
3. Works for Hire – 95 years from publication or 120 from
creation
xiv. Copyright Remedies
1. Types of remedies
a. Injunctive relief – An injunctive relief is a very
significant remedy. Normally you can’t get an
injunction limiting speech or press rights, but in
this case you can enjoin the publication of the
work.
b. Impound – you can impound infringing work
c. Destroy – Could destroy the work possibly
d. Damages – You can only get to choose one of
these
i. Infringer’s Profits – When establishing
infringer’s profits, the copyright owner is
required to present proof only to the
infringer’s gross revenue, and then the
infringer is required to prove his/her
deductible expenses and the elements of
profit attributable to factors other than
copyrighted work. Check notes for
example Gaste
ii. Actual Loss – This is to put the owner is as
good as position they were in before
infringement. Loss of copyright value or
maybe they lost a particular opportunity
iii. Statutory damages - this is valuable if you
can’t pin down the profit or loss to
plaintiff. If there wasn’t a loss the
copyright plaintiff can elect for statutory
damages, which are a vast range. You can
get a flat amount awarded by the court
without any proof of harm per
copyrighted work.
xv. Digital Millennium Act
1. Problems start with the transition of technology and
how it is constantly changing. Computers use to not be
a problem because you couldn’t do much on them.
2. Started with Sony Beta, then we had the internet with
napster. Digital music is what really caused the DMCA,
because perfect qualities and reproductions were
available. The record companies tried to do something
about it but the cat is out of the bag and illegal file
sharing is almost impossible to be stopped. The RIAA
began enforcing copyright violations directly on users,
and they started getting really bad press. They then
started trying to get legislation passed
3. Provisions:
a. §1201: Protects measures taken by owners to
control.
b. Access to copyrighted material
i. E.g. – password protection
X. Other Forms of Liability: Trademark Moral Rights, Contract
a. Artistic Credit
i. Either one of two situations
1. People weren’t given proper credit
2. Or
3. People don’t want credit for something
a. Either they didn’t do something and the
person is just trying to use their image to sell
b. Or the person using the work has changed it
to the point where it no longer embodies the
original work.
ii. Lanham Act §43(a) – Any person who, on or in connection with
any goods or services…uses in commerce any word, term,
name, symbol, or device…or any false designation of origin,
false or misleading description of fact, or false or misleading
representation of fact which
1. is likely to cause confusion, or to cause mistake, or to
deceive as the affiliation connection, or association of
such person with another person, or as to the origin,
sponsorship or approval of his or her goods, services, or
commercial activities by another person, shall be liable
in a civil action by any person who believes that he or
she is or is likely to be damaged by such act.
iii. This Act allows a P who alleges that a D has presented to the
public a distorted version of P’s work a cause of action by two
means:
1. Palming/passing off - the selling of a good or service of
one's own creation under the name or mark of another
2. Reverse passing off - occurs when a person removes or
obliterates the original trademark, without
authorization, before reselling goods produced by
someone else
a. Express reverse passing off - the wrongdoer
removes the name or trademark on another
party's product and sells that product under a
name chosen by the wrongdoer
b. Implied reverse passing off - the wrongdoer
simply removes or otherwise obliterates the
name of the manufacturer or source and sells the
product in an unbranded state
iv. Example - *Lamothe v. Atlantic Records
1. Songs were composed of three songwriters. The band
broke up and then Crosby joined another band. He
licensed the song with Time Coast Music. The songs
came out and then there was sheet music created. Two
of the songwriters were left off of the sheet music as
authors. The two authors sued Crosby for omission of
their name of the album and sheet music. The lower
court ruled summary judgement in favor of Crosby. The
Appellate Court disagreed. There was a reverse passing
off since they deprived the two authors of recognition
and profits from the release of the songs.
a. The express language of §43(a) also imposes
liability upon those who “with knowledge of the
falsity of such designation of origin. . .cause or
procure the same to be transported or used in
commerce.
b. This goes back to a credit element (recognition)
and an economic interest. There is real value to
have your songwriting abilities credited
v. Does copyright protect?
1. Not originally, because © gives you economic rights
(right to be compensated for the use of your work),
and the person was paid....the issue isn’t getting
paid, it is not wanting your name on a piece of work.
2. European concept of “moral rights” has had an
influence and now recognize rights other than just
economic compensation. This is the current shift.
a. On top of page 520, there is actual language
of the Berne convention
i. “Independently of the author’s
economic rights, and even after the
transfer of the said rights, the author
shall have the right to claim
authorship of the work and to object to
any distortion, mutilation or other
modification of, or other derogatory
action in relation to, the said work,
which would be prejudicial to his
honor or reputation.”
ii. U.S. enacted a small provision (VARA)
to incorporate the Berne convention
1. Basically protects things like
paintings, sculptures, and
limited edition prints and
photos -> works of art (things in
museums).
a. Not really significant in
entertainment law.
Doesn’t really apply to
books, music, or movies.
b. This is why people go to
Trademarks, contracts, or
collective bargaining.
b. Moral Rights and Creative Control
i. Visual Artist Rights Act – Provides two types of moral rights
1. Applies to visual arts
2. Right to attribution - right of artist to be recognized as
the author of his own work, and preven work from
being attributed to someone else
3. Right to integrity – right of artist to not have work
destroyed, mutilated, or changed without the artist’s
consent, even after transfer
ii. Creative Rights
1. you can’t make a false recognition of someone else’s
work, because there could be damage to reputation.
Look at contract to see rights. Contract can supplement
rights under Lanham and state Unfair Competition Law.
2. example - Granz was a jazz artist. Two of his songs
were recorded. Granz licensed these songs to Harris
and Harris was supposed to put Granz name on the
credit line. Harris cut out parts of the songs. So did the
manufacture of the edited recording screw with Granz
rights. Should they contribute them to Granz on the
credit line. The court decided that if you sold the
abbreviated recordings it would be making a false
recognition since Granz didn’t approve of the adaptions.
There was a substantial cutting of the original work
which causes unfair competition. There could have
been a damage of reputation. The contract gave a right
to prevent the edited version. If the contract didn’t have
anything about the credit line then Harris could have
released the album.
3. Lanham Act also prevents misrepresentations that may
injure reputation or business.
4. You can’t edit a work so much that it misleads the
audience to thinking that the writers intended for it to
be edited as so. Trademark claim. Ex – Monty Python
Case
c. C. Trademark instead of Copyright
i. In general a trademark infringement takes place when the
mark is used in a way “likely to cause confusion, or to cause
mistake, or to deceive”
ii. Lanham Act defines trademark as:
1. Any word, name, symbol or device... used by a
person . . . to identify and distinguish his or her
goods...from those manufactured and sold by other
sand to indicate the source of the goods...”
iii. Marketing something in a way that is false, not crediting
the people that created it.
iv. Central Issue: Is there a likelihood of Confusion of Dilution?
1. Likelihood of Confusion,
a. Factors:
i. Strength of the Mark
ii. Similarities of the Mark
iii. Proximity of the Mark
iv. Senior mark potential to bridge the gap
v. Actual Confusion – not necessary, but can
be great evidence
vi. Bad faith
vii. Quality of the junior user
viii. Sophistication of the Consumer – more
sophisticated, less likely to be confused.
b. Example Analysis - *Hormel v. Jim Henson
i. Jim Henson created a character named
spa’am, who was a high priest of wild
boars. Hormel foods who is the maker of
SPAM had a problem with the
merchandising. They thought that
Henson’s character would make their
product unappetizing and would confuse
the consumer.
ii. The court discussed the trademark
violation and whether it would cause
confusion. Used an eight factor test:
1. 1. Strength of the Mark
a. Parody depends on a lack of
confusion to make its
points
2. 2. Degree of similarity between the
marks
a. an inquiry into the degree
of similarity between two
marks does not end eith a
comparison of the marks
themselves the …the setting
in which a designation is
used affects its appearance
and colors the impression
conveyed.
3. 3. Proximity of the Products
4. 4. Bridging the Gap
a. Bridging the gap refers to
the “senior user’s interest
in preserving avenues of
expansion and entering into
related fields”
5. 5. Actual confusion
6. 6. Bad Faith
7. 7. Quality of the products
8. 8. Consumer Sophistication
iii. This case discusses parody as well. The
court said that a parody must convey two
simultaneous and contradictory
messages: that it is the original, but also
that it is not the original and is instead a
parody.
iv. The merchandise is what Hormel was
worried about, since SPAM was starting
its own merchandise for their product.
2. dilution – This doesn’t involve a likelihood of confusion,
but either blurring or tarnishment of the TM owners
mark. Factors:
a. Must be a famous mark
b. Must be blurring (mark might lose its ability to
be a unique identifier for original product) or
tarnishing (mark is linked to products of bad
quality or would hurt by being immoral)
d. Contract Rights in Story Ideas
i. You can’t copyright ideas but, you may be able to proceed on
an implied contract claim when someone steals your ideas
1. “Ideas are as free as the air.”
2. It has to be an expression to receive protection
under © law
a. Same for patent and Trademark law.
3. So the question is what kinds of law can protect
ideas?
ii. Elements of Implied contract (contract):
1. Before or After Disclosure the P has obtained an express
promise to pay, or
2. The circumstances proceding and attending disclosure,
together with the conduct of the offeree acting with
knowledge of the circumstances, show a promise of the
type usually referred to as implied or implied in fact
iii. Example *Art Buchwald v. Paramount Pictures
1. Buchwald was a reknown writer. Paramount pictures
bought an option to his work called King For a Day.
Eddie Murphy was supposed to be involved. Paramount
eventually after 3 or 4 years abandoned the project.
Buchwald then sent it to Warner Brothers and when
they were developing the screenplay. But then they
found out that Paramount was putting out a similar
movie called “Coming to America.” Eddie Murphy was
involved in that movie. Buchwald brought a suit
because his contract said that if Paramount made a
movie based upon his movie then he should get paid.
The legal issue revolved around what based upon
meant. The court looked at access to Buchwald’s
storyline and then they went through the similarities.
a. Court decide that when the evidence of access is
overwhelming, less similarity is required. Even
if the similar material is quantitatively small, if it
is qualitatively important the trier of fact may
properly find substantial similarity.
b. This analysis looks very similar to a copyright
analysis. The whole case establishes what the
words “based on” means.
c. The author was entitled to what he would have
made through the initial contract.
d. Paramount might try to get out of paying
Buchwald 19% of net profit of $350,000,000 in
revenue. Paramount claimed that they had an
$18,000,000 net loss. The court didn’t accept
that argument.
2. When you are negotiating a contract and you have
something in it about net profit, then that person is
going to try to find a way to reduce the profits so they
don’t have to pay you anything. In negotiating a
contract you would want to negotiate the contract on
the revenue.
3. Damages
a. Percentage of profit
b. Studio claimed there were not profit, claimed
overhead prices
i. Court found this unconscionable,
because studios would be able to claim
that no movies made money
c. The point is that when drafting a contract, a
person that represents the damaged side,
base the monetary figures off of percentage
of revenue than percentage of profit.
iv. Analysis varies from state to state
1. N.Y.
a. Only if story is novel or original, can there be
recovery through contract.
b. As opposed to Cal, where all you have to have is a
contract.
v. How can parties protect themselves when one party has an
idea and another party may be interested in an idea.
1. The individual with the idea
a. Non disclosure agreement
b. Records
c. Reveal little
d. Try to develop it into as much of a detailed
discussion that you could copyright it.
2. The studio
a. Reject unsolicited submissions
b. Disclaimer in contract absolving liability
c. Records
vi. Best Efforts clause – def.
1. Req. of definiteness – page 620
2. Ways to protect parties when making best efforts
clauses (to ensure that best efforts are pursued)
a. Time requirement
i. Have to negotiate for a certain amount of
time
b. Right of first refusal requirement
i. Right to match new offer
vii. Consideration and mutuality
1. Ask what we need to know for the exam
viii. Contract parties: minor
1. Ask what we need to know for exam
XI. Entertainment & Agents
a. Entertainment Contract Obligations
i. General
1. Dispute is over whether a party has breached a
contract, not whether there is one
2. Personal Service contract- performers are hired
because of their unique talent, and because of the way
they express themselves through their acting, singing,
or writing.
ii. Creative Control
1. This is something the many artists are going to want to
keep. There is no way to sum up the many situations
where disputes arise. If you have an artist with some
negotiation power, try to keep/get creative control.
a. Pay or play clause
i. One way in which these creative
disputes can be worked out (page 666,
note 3, paragraph 2)
ii. This clause means that it gives the creative
person (typically actor/director) a payment even
if the film isn’t made or they weren’t retained to
make the film. This is one way where creative
disputes can be addressed.
iii. Morals Clauses
1. Provision that is often in the contract for the movie
industry, to make sure that the major participants don’t
do anything to shed negative publicity to the project
and drive off buyers of the final product. This gives the
studio the ability to get rid of the actor from the project
if they do something illegally.
a. (loew’s inc. v. Cole) (like the 10 – communist)
b. Caluses can be very common
i. Can be grounds for termination if there
is a violation of a clause
ii. No direct first amdnemdnt issue with
the clauses...private parties.
iv. Non-Compete Clause
1. This will often appear, especially in publishing
contracts. This is to protect employers from preventing
former employees from luring away former customers,
exposing trade secrets, or similar harmful conduct.
Courts won’t let the non-compete clause have too large
of a hold on the employee, but will normally uphold
them if they are reasonable.
v. Satisfactory Product
1. What clause would say “The author will deliver to the
publisher, on or before (date), one copy of the
manuscript of the work as finally revised by the author
and satisfactory to the publisher in form and content.”
2. Problems occur when the author delivers, but it
publisher claims it isn’t good. You have to look at what
is reasonable in the industry. Then you have to look to
see if the publisher has an obligation to help the author
improve a manuscript. This might mean providing
proofreading or possibly more editorial assistance
before it can reject a manuscript of being unsatisfactory.
3. The publisher has to show a reasonable basis for
showing a rejection based on industry standard,
evidence, and expert testimony.
4. (Harcourt brace jovaovich inc. v. barry goldwater
and doubleday v. tony curtis– see what
circumstances matter (good faith obligation, etc.))
5. It is very common for the author to receive a
significant advance
a. An upfront payment from the publisher to the
author of what is expected to be the royalties
of the book. Used to pay for expenses, but
creates expectations and obligations on the
parties.
i. There can be an obligations to provide
a satisfactory product (i.e. an author
writing a good manuscript).
b. Not a simple matter or judgment...always
depends on circumstances
vi. Best Promotional Efforts
1. This is an implied obligation on the publishers part to
act in good faith by expending “reasonable efforts” to
promote client.
2. It is best to have this spelled out in as concrete terms as
possible.
3. There are usually industry standards.
4. Obligations on the publisher to promote a work to a
certain extent.
5. Courts have typically read into such contracts an
implied obligation of publishers/labels to act in a
good faith by expending “reasonable efforts” to
promote.
vii. Royalties and Profits
1. Net v. Gross Profits- You would prefer to get Gross
profits, but this is normally limited to big stars.
a. Net Profits- They can be risky because you have
to watch out for overhead costs. Profits can be
scary to commit to.
b. Reduction in Gross- Sometimes gross revenue
can be reduced by having a studio that also has a
tv network. If the studio sells the rights to their
own television network then they might reduce
the price of what a normal buyer would pay,
which would lower the artist’s total gross
revenue.
viii. Remedies for contract breach
1. Performers vs. producers (Vanessa redgrave v.
boston symphony)
b. Entertainer Representatives
i. Talent Agent - Essentially the talent agents job is to secure
employment for the artist. This is done for a fee that is
typically %10 of everything the agent secures by way of
revenue. That allows the agent to have a real incentive to work
for the artist. There can be conflicts of interest if the individual
has other business interests and therefore might not be acting
in the best interest of the artist. Normally they are obligated to
act in the best interest of the artist.
1. Procure employment and projects for the
entertainer
a. In return, they usually receive 10 percent of
proceeds.
ii. Personal Manager - This is normally the first type of agent you
get. In order to get a talent agent the artist will have already
hired a personal manager that helps the artist with their day to
day business, financial, and personal managers. There can be a
blurring between the role of personal manager and talent
agents.
1. Handles the day to day affairs and
problems...logistics, travel, go to person.
a. Usually 15-25 percent
iii. Business Manager – This is usually for an
established/successful artist. They handle the financial
investment side of dealing with all the money.
1. Manages the money side
a. 5 percent usually
iv. Lawyer – The Entertainment Lawyer is brought in on these
transactions, especially if there is a lot at stake, to assist the
artist on making the best decision for them. There might be an
overlap with someone who has a legal background with
another capacity such as a personal manager. It is important
that there are not conflicts of interest between the
relationships.
1. Hourly fee, not percentage
v. Concerns
1. Extent of authority to bind entertainer
2. Competence
3. Compensation, when? How much? For which things?
4. Conflicts of interest when representing more than
one entertainer.
c. State Regulation For Agents
i. New York - Their license scheme has been around for 100
years. Definition of a talent agent is very broad “any person
who procures or attempts to procure employment or
engagement…” but does not include the business of managing
such entertainment, exhibitions . . .”
1. There is a ceiling for commission, which is a %10 fee.
Can’t be above or would violate statute.
2. Example Case-*Mandel v. Liebman
a. Liebman was an author/writer/director. Mandel
was a lawyer and manager. Mandel was to
receive 10% of all engagements during contract
and 10% of all engagements commenced during
the contract term. Liebman tried to get out and
claimed the contract was unconscionable and
that it was an attorney retainer agreement. The
court said that there was consideration under
the standards of the field. They said that it is not
their job to look if the defendant made a good or
bad bargain. They also said that an attorney may
enter into a contract of employment which can
be enforced against the employer, and that is so
even though the employment may envisage the
exercise of his legal skills and ability.
ii. My notes
1. If you procure employment as an agent, you are
required to have a license.
a. Exception: manager that (page 780 –
definitions)
2. Statutorily mandated fee of 10 percent...cannot
exceed ten percent....bottom of 780 for exact
wording.
iii. California
1. You have to have a license if you are engaging in the
occupation of procuring or attempting to procure
employment (this goes to personal managers and
agents)
a. the only exception are record label agreements
b. An unlicensed agent, such as a manager, can act
in conjunction with a licensed talent agency in
the negotiation of an employment contract
2. The California agent has to get pre-approval of the
talent agents standard contract before they agency can
use it to make sure it isn’t unjust or unreasonable
3. There is no limit or cap for fee. Anything over 20-25%
would probably be unconscionable though.
4. You don’t just look at express language when deciding if
someone is an agent, look at conduct
5. If the agent’s employment procurement function
constitutes a significant part of the agent’s business as a
whole then he or she is subject to the licensing
requirement of the Act even if, with respect to a
particular client, procurement of employment was only
an incidental part of the agent’s overall duties.
a. What constitutes a “significant part”?
“Procurement of employment constitutes a
“significant” portion of the activities of an agent
if the procurement is not due to inadvertence or
mistake and the activities of procurement have
some importance and are not simply a de
minimis aspect of the overall relationship
between the parties when compared with the
agent’s functions on behalf of the artist.
6. My notes
a. California talent agencies act
i. License requirement on top of page
787
1. Exception for those who procure
recording contracts (different
from the N.Y. law)
ii. Any contracts have to be pre approved
by the Cal. Labor commissioner.
iii. There is no specific statutory limit an
agent can receive...although, it won’t
be approved if it goes over 20-25
percent.
b. Raden v. Laurie
c. Wachs v. Curry
i. Arsenio hall case
1. Reprsentatives found not to
have license....ordered to pay
back money.
d. Conflict of Interest in Entertainer Representation
i. You have to know who your client is.
1. i.e. knowing when you represent that corporation
instead of an individual sitting across from you.
ii. This is a hard subject, you want a representative with a lot of
connections, but then you run into conflict of interest issues
1. In Potential Conflict of Interest, there are two
conditions that must be met in order to represent:
a. You have to have the ability to adequately
represent both clients
b. Each client must give their consent
iii. Fiduciary duty – “A fiduciary duty arises when a lawyer deals
with persons who, although not strictly his clients, he has or
should have reason to believe or rely on him.”
e. D. Union Regulation of Entertainer Representation
i. Conspiracy/agreement for a price (section 1) is a per se
violation
ii. But you also have labor law- unions
1. Agents
a. Scale
b. Unions are entitled to act on behalf of its
individuals and try to get better money (h.
artists and associations inc. case, page
823.)....this is an exception....however, Unions
are not immune. (say if they formed an
agreement with theatre owners that
benefitted the theatres that work with them
over others.)
iii. Unions are immune from prosecution under anti-trust statutes
for monopoly-like behavior, since their goal is to look out for
the self-interest of their members
iv. Case Example - *H.A. Artists & Associations v. Actor’s Equity
Assn.
1. Equity is a notional union that represented stage actors
and actresses. At the time there were high employment
rates for theatrical actors and they only let their unions
negotiate with agents who had a license from their
union. Some of the agents filed a lawsuit claiming this
was against antitrust laws. The court began its analysis
by noting that there is tension between antitrust law
(looking to help competition) and labor law (self
interest of preventing some of that comp). basically
there is a question of equity franchising compared to
people who opt out of those labor groups. This was a
labor group with a labor dispute then it is alright under
the laws. This was alright because it set pricing floors.
So it was like a minimum wage for the actors. Equity
added scale wages. So if the talent agent was trying to
get the actor to accept a wage below scale the equity
rule would prevent that.
XII. Performer Organizations
a. Labor Law in the Entertainment World (Unions)
i. Defintions:
1. Credits
a. The desire to be credited for you work
i. Can be affected by the union
ii. Entertainment law is one of the most
unionized industries in the country
2. Scale
a. Compensation
b. In particular what is called scale, which is
negotatiated compensation (the minimum
amount that you must be paid)...also majorly
affected by unions.
3. Negotiated increases
a. Major players can further negotiate their own
contracts and wages
4. Residuals
a. Primarily movie industry
b. Tied to who is credited to work
c. Additional compensation that actors, writers
and other for future revenue generated by a
film after it’s initial theatre run
5. Case:
ii.
iii.
iv.
v.
vi.
a. Marino
i. Process on page 844 – worth taking a
look at
1. Privately negotiated process
(don’t know how this is
testable)
b. Graham
i. Contract of adhesion– page 856
1. The term signifies a
standardized contract, which
imposed and drafted by the
party of superior bargaining
strength, relegates to the
subscribing party only the
opportunity to adhere to the
contract or reject it.
2. Found to be oppressive
3. Struck down by court
4. Gave a home field advantage to
the union.
c. AFM v. Carroll
6. Antitrust (if you have a group of selles, they cannot
collaborate and decide on a minimum price)
a. Labor exemption to antitrust law
b. Unions are exempt to the normal pay scale
i. Scale payment
ii. Or go on strike
The huge number of labor organizations is trying to further the
economic and other interests of members. They provide health
and retirement benefits to a lot of the members. All the unions
vary
They often are involved in the sort of credit and recognitions
that there members might get. If there is a dispute the union
would be involved in deciding.
Minimum floor compensation that is given to their members.
The scale or lowest amount of compensation. Everyone who
does a particular amount of work will make a certain amount
of money. These unions only provide the floor, so the studios
could pay a lot more.
They give rules on working conditions, hours and benefits their
workers will get.
Unions have been getting involved on residuals. For example,
movies use to only be allowed on the big screen but now there
are a lot of different ways to show movies. The first big
residual fight was through television. You get a minimum
amount of residuals from television performances now. Then
the next set of battles was cable, satellite, dvds, and internet.
There has been a series of these battles which leads to a
minimum amounts of residuals. There of course can be
negotiations for higher amounts for individual
actor/producer/writer.
b. How to determine whether individual is an independent contractor or
employee in union setting?
i. Often people have dual roles (such as producer and director)
ii. This can create complications
c. Loan Out Companies
i. There is also the idea of a “loan out” company. A LO Co. is a
legal mechanism that actors and others will use to set up a
company, which will offer their services to studios/producers
and others. This is a corporate alter ego. This allows for tax
benefits so income is not coming in as personal income. If you
can use this corporate mode it can reduce tax liabilities and
enables for deductions on certain expenses that a person
couldn’t normally deduct under their income. This also can
save the studio some money buy giving them protection for tax
liability. You will often see references to the loan out
companies. The loan out company then becomes a member of
the relevant union
d. Performing rights societies
i. Application of copyright law to music
1. 2 pieces of copyrightable material
a. Composition/song
b. Sound Recording (original and you can have
covers)
2. Songwriters (not all band members) have full public
performance rights in their work
a. But not in sound recording (only original
composition)
i. Exception
1. Digital transmission (satellite
radio, etc....not over the air)
ii. 3 organizations
1. BMI
2. ASCAP
3. SESAC
iii. Blanket license
iv. Gives you the right to play any song in a certain
organization’s repertoire.
e. CBS case (search for general holding)
i. Distribution of money to songwriters based on formula
dealing with air play look up
XIII. Author/Publisher Activity (representative of a possible exam question)
a. Publisher wants
i. release of all claims is the most important objective for the
publisher.
ii. Rights to materials
iii. Give up least money
iv. Future business (the new book deal)
b. Author wants
i. Financial compensation
ii. Reputation
iii. New book deal
iv. Attorney fees (an average of 500 a hour)
c. Possible suits (in order of strength)
i. Copyright
ii. Breach of K
iii. Credit - §43 of lanham act (Meyes likes this claim)
iv. Defamation/false light (weakest argument)
d. Corresponding defenses
i. Contract
ii. Contract
iii. No name is on it. Is it really “his product?”
iv. No name is on it (best defense)
e. Important aspects
i. Settlement amount
ii. Amount for royalties on this and next edition
iii. Release of claims
iv. New book deal
v. Atty fees
vi. Misc
1. Confidentiality clauses
2. Disparagement clause
3. Choice of law (no points)
4. Choice of forum clause
5. Advances
XIV. Antitrust & Corporate Law Issues
a. Anti-Trust Law
i. Boils down to the rules of the game for American
businesses operating in today’s economy.
ii. Summary on page 929
iii. §1 Sherman Act
1. Vocabulary
a. “Contract combination or conspiracy in
restraint of trade” is illegal.
i. Promotes anti competitiveness
b. Conspiracy - People combining or agreeing
among themselves how to do business.
i. i.e. price fixing
1. looked at by courts through the
per se rule (it is a blanket
provision)
ii. needs to be an agreement
c. combination – merger (2 or more)
i. courts look at this on a case to case
basis (rule of reason)
d. contract
i. example of agreements
2. Covers Three Types of Agreements (Has to be some
form of agreement between two or more independent
parties)
a. (1) Contracts
b. (2) Combinations
c. (3) Conspiracies
3. Broad Categories Covered
a. Tying Arrangements- Forces you to buy a second
product when you really only want one. Seller is
requiring the buyer to follow the contract that
has extra stuff.
i. Elements
1. Two Products
2. Tied
3. Market Power
4. Substantial Amount of Commerce
Involved
b. Combinations- Market Power is needed.
Situation where there is a merger between two
or more firms. All stocks and assets are
combined. Looking at mergers there are three
type of merger situations:
i. Horizontal Merger - this would be the
situation where two firms who are doing
the same thing in the same market
combine. Ex- two tv stations combine
(abc and nbc)
1. Concern- The newly merged firm
is so large that they can raise
prices or impose terms that are
not wanted on consumers.
ii. Vertical Merger- This is the situation
where the merger occurs in the chain of
distribution. Ex- Production company
acquire television or theatre line.
1. Concern- Concerned that the
company might favor its own
distribution network over others.
Will the movie studio limit its
license to only theatres that they
own and put them at an advantage
over independent studios.
iii. Conglomerate Merger- This is where you
have a firm in one market acquire a firm
in a totally different market. Ex- Sony as
an electronic company acquires a movie
studio. Business that has different
venture.
1. Concern- These are very large
companies. So big that they can
wield their economic power to do
anti-competitive things. Might
have to question this one because
harder to show antitrust harm.
Least amount of concern.
c. Conspiracies- Best Illustrated by Price Fixing,
which is unlawful per se
i. The idea that price fixing is
anticompetitive trade. This is where a
group of movie theatres get together to
raise the price of movie tickets, it would
benefit the theatres at the expense of the
consumer. The consumer is left without
an alternative. This is called a horizontal
price fixing agreement. This is unlawful
per se (automatically condemned without
looking into the reasoning).
ii. Vertical price fixing agreement- movie
studios require theatre to impose a
certain price for tickets. Traditionally this
to was considered unlawful per se, but
recently the Supreme Court has changed
this and applied the Rule of Reason.
1. Rule of Reason is a case by case
analysis looking at all the relevant
facts in the market. That doesn’t
make it permissible, but it is
analyzed differently than per se.
iv. §2 of the Sherman Act1. Vocabulary
a. Prohibits the effort by any person to
“monopolize or attempt or conspire to
monopolize trade.”
i. All that is necessary is that there is one
single large firm involved.
ii. This is about the big firm exercising too
much power in some way.
iii. How do you prove a violation?
1. You have to have market power.
a. A significant player in the
market.
b. You have to achieve actual
monopoly power.
i. What it means
ii. ---Not 100 percent,
involves having such
a share that you can
really influence what
the price in the
market is going to
be.
iii. Attempted:
iv. ---Takes less power;
the court uses the
buzz phrase:
Dangerous
probability of
success.
2. Conduct
a. not just being large is
enough....you have to do
something bad.
i. Ex. Refusal to deal
(story about
newspaper refusing
to give ad space to
anyone who
advertised on the
radio.
b. Need some bit of conduct
for attempt as well.
3. Intent
a. newspaper example is to
drive radio out.
2. Three Types of Conduct to be condemened
a. Monopolization – you succeed. Achieving
monopoly power in some unlawful way
b. Attempted Monopolization- you try, but fail or
don’t achieve the Monopoly power
c. Conspiracy to Monopolize- you conspire with
someone. An agreement to try to form a
monopoly
3. Monopoly Elements
a. Market Power- defined as the power to effect
price. So we aren’t concerned with small firms
but the extremely large firm.
i. 1. Element 1- MUST HAVE Monopoly
power- This is a whole lot of Market
Power. Ex- this is like Microsoft having
the power over pc. They had 85-90% of
the market. You don’t have to have 100%.
ii. 2. Element 2- Conduct. There must be
some anti-competitive or exclusionary or
predatory conduct. These are three
different ways of saying bad conduct.
There must be some impermissible
behavior, if you don’t have bad conduct
then there is not a section 2 infringement.
iii. 3. Element 3- Intent. There has to be
general intent for monopoly
4. Attempt Case
a. 1. The Market Power needed is a “dangerous
probability of success.” So there is a real
prospect of achieving the monopoly power, they
are striving to attain the monopoly power. Lower
showing of power.
b. 2. Conduct- same as monopoly.
c. 3. Concerning Intent- you must have specific
intent which is a higher level of proof
5. Conspiracy Case
a. 1. Market power- Similar to Conspiracy under §1.
This must involve 2 or more firms. You would
normally bring a §1 as well as §2.
6. *Defense to §2
a. If someone achieves a monopoly position
through superior skill, foresight compared to
others in the industry then it is not anticompetitive conduct and would not be
actionable. This is something we want to
encourage!
v. Who enforces these rules?
1. The FTC and Department of Justice
vi. General Notes and Cases
1. A lot of claims involves both sections...in a lot of
cases, if you satisfy one, you will satisfy the other.
2. A number of civil and criminal remedies against
those who violate antitrust.
3. Get a good idea of what conduct violates these
sections with the case law (good conduct v. bad
conduct) (the entire chapter 12 discusses conduct):
a. United states v. Paragmount pictures, Inc.
(page 936).
i. Conduct involved?
ii. The result of the case led to a dramatic
decrease in the amount of movies
production companies made. \
b. U.S. v. Loews
i. Conduct?
ii. On 961, whether the copyrighted or
patented right means you have
power...it doesn’t. the USSC ruled in
2006, that you don’t presume power in
the market because there is a
copyright or patent.
c. United states v. Syufy enterprises
i. Conduct?
ii. Effect on the moviegoers was an
element considered in deciding good
vs. bad conduct.
1. Also whether the act is anti
competitive?
4. There can also be an issue in maintaining
monopolies, not just acquiring.
a. U.S. v. Loew’s inc., et al.
i. Conduct?
ii. To show us that there are economic
changes in the market, a lot more fluid,
more competitive...people have more
entertainment options...how should
courts take this into account?
1. This case shows us this...find
out!
b. Anti-Trust in the Music Business
i. Price Fixing Case. This involves the PROs actions. They have
been the subject of a number of antitrust suits concerning
behavior that could be price fixing. This is different than your
three theatres agreeing to raise movie ticket prices, because
the PROs benefit consumers. BMI, ASCAP, and SESAC
essentially serve as intermediaries to songwriters and all the
places that want to play their music. The songwriters give PRO
a right to enforce public performance rights to their work. So
you might have 10,000,000 songs and a half of million people
that wrote them. No individual songwriter has the ability to
police copyright infringement or have the power to negotiate
licenses with ever user (restaurant, bars, ice rinks, etc.) The
users either want to get a license or are compelled by the PROs
enforcement policies, by policing through the rights given
through copyright law. Essentially the user purchaser get a
blanket license to play all the songs. They pay the license fee
and then PRO allocates the fee to the songwriters by popularity
of songs. BMI/ASCAP are nonprofit orgs. The problem is that
these songwriters that formed the group have a horizontal
agreement. They have gotten together and created these
companies to police and they get billions of dollars in royalties.
You could say that they are a group of competitors and the this
is a horizontal price fixing. They are doing so in a way that
increases the fee compared to how they might be in a
competitive market. CBS, Cable companies, local stations sued
and were complaining about the fee. Went all the way to the
Supreme Court they said this is an agreement with competitors
but this isn’t a normal price fixing case. This is a unique
product that prevents people from having to negotiate with all
the songwriters. The product saves significant transaction
costs and the only way this can be done is through this joint
effort of these companies. So the court held because of the cost
saving and other features this should be analyzed through the
rule of reasoning instead of unlawful per se. Then it was found
this isn’t an anticompetitive agreement. The sum of the whole
was greater than its individual parts. For one fee these people
were able to acquire all these rights. BUT this is a nonexclusive
agreement. So you have the ability to negotiate with the
songwriters and their representatives. Say that you have a
venue and you don’t want to pay the blanket license you only
want to play beatles songs. You can go to the beatles and pay
them directly and only play beatles songs. This could also be a
stadium that is only going to play a small list of songs. So all in
all the PROs are not limiting you in any way.
c. Questions and Answer for Anti-Trust
i. 1.Is there an argument that this is first amendment protected
since they distribute movies which are protected by First
Amendment?
1. You can’t illegally restrain trade. Sherman is content
neutral regulations, they aren’t telling them how many
movies they should make or what type.
ii. 2. Is there anyway in which the price fixing could be defended
by not being in the classic box?
1. You can argue that this is vertical price fixing. To the
extent that it is vertical fixing you might look at this
through a rule of reasoning standpoint instead of per se.
Still looks bad as to a competitive standpoint. The
consumer doesn’t get any benefit from the minimum
pricing. Look at consumers.
2. Horizontal price fixing. To the extent we have studios
price fixing there is no justification for the violation. Per
se violation.
iii. 3. Block Booking- Could there be a justification for saying that
we have five movies that haven’t been seen, we want you to
agree to show all five movies and we want them as a group?
1. This is almost like sharing the risk. Two of the movies
could be hits while the other three aren’t. Since they are
sharing the revenue maybe the theatres should share
some of the loss as well.
2. This is different if the movies are already done. Because
you know if they are a hit or a loss already.
XV. FCC Regulation of the Media
a. We’ve discussed before with Pacifica
i. And the pending fleeting expletives issue
b. This is dealing with a series of other issues dealing with the FCC
c. History of broadcast regulation
i. Started with radio
1. Presented the challenge of interference
a. i.e. different stations operating on the same
frequencies
i. the idea was that we have to assign
licenses and regulate.
ii. Television
1. Essentially the same problem as radio – limited amount
of broadcast frequencies
2. FCC has more of a right to regulated indecent
information on general broadcast (radio and t.v.) than
cable and mediums with less scope.
iii. There became a concern that the broadcasters had too much
power.
1. There was no satelitte tv and cable was only slowly up
and coming.
2. There were only a few stations.
3. Because of this power, the FCC started to regulate
broadcasters heavily
a. Most of which are now repealed because the FCC
has decided to deregulate over time (partly to
reflect the changes in circumstances (more
options)
d. Specific regulations
i. On 986, 1004-1005 – fairness doctrine
1. Doctrine has three elements
a. A broadcaster was obliged to when covering
controversial issues of importance to provide
opposing viewpoints.
i. Had a bad effect because many
broadcasters didn’t want to present both
sides, so they didn’t report on
controversial issues.
ii. There was also a first amendment issue
(brought in Red Lion v. FCC - 1969)
1. Upheld the fairness doctrine.
b. The second part is the personal attack rule
i. Said that if a broadcaster id’s someone by
name and engages on some kind of an
attack on them (reputation, qualifications,
etc.), that individual had a right to come
on air and respond.
c. The last part is the political editorial rule
i. Said that if a station favorably endorsed a
candidate, then those who are not
endorsed had the right to respond.
d. Red Lion v. FCC upheld all aspects of the
Doctrine
2. Things have changed though (final group activity)
a. FCC has repealed all aspects of the fairness
doctrine in 1989 and 2000...the question in the
group activity is whether it should be brought
back and whether that would be constitutional.
ii. Schurz communications inc. v. FCC (1992) (page 991)
1. Syndication regulation
a. In the 1960s, the FCC regulated syndication with
various rules (what are the specific
regulations? Look in case opinion)
i. There were concerns about the networks
having too much power.
b. Court removed regulation of syndication
i. Court couldn’t figure out what benefits or
interest were that was associated with
the regulation.
c. The case is an example of changing
circumstances that due to changing technologies
and more options, that these regulations while
they may have made since a while ago, do not
now.
iii. When evaluating FCC regulation on exam
1. Is this policy constitutional?
a. Does it violate the 1a
2. If it is const. does the FCC have the statutory authority
to regulate?
a. Neutrality hypo (group activity – regulation of
the internet)
3. If it has the statutory authority...Is this good policy?
Should the FCC does this or should congress get the FCC
to do this?
iv. Turn broadcasting case (page 1009)
1. The fcc was concerned when cable debuted
a. Almost always every cable company is a local
monopoly.
i. The question arises: if you only have 13
channels...which channels do you
broadcast?
ii. FCC responded to the concerns of the
broadcasters that their content won’t be
chosen by the cable companies.
1. Local broadcasters might get
crowded out by major networks
like TBS and WGN
b. The FCC obligated cable companies to carry local
broadcast stations (still in effect today)
i. Not that big of a problem now, because
companies have many channels.
ii. Court upheld in TBS v. FCC...the rules have
altered due to technology though.
Reading: 1047-1049
-
How licenses are granted
o The FCC decides who get the licensees
 Under a very broad grant of authority
 Public interest, convenience, and necessity
 Comparitive
 Two or more applicants, the FCC balances the
competive interests and to grant a broadcast license on
a certain frequency
o Historically not done as an auction.
 What should the FCC take into account when deciding this
 They have sought for diversity of ownership.
 You also have to get renewals after being granted license.

As long as you follow laws and regulations, it is kind of
assumed.
o Metro braodacsting inc. v. Fcc – issue of intermediate scrutiny, FCC
had a minority prefernce policy as well as a distress sale policy
 The point is that they now apply a strict scrutiny test
 Struct down diversity policies of the FCC
 The FCC can and still does look at in judging the PI, C
and N standard for broadcast licenses:
o Local ownership (plus for local owners)
o Plus for civic particpation
o Plus for intergration of wonerhsip and
management
Exam review
-
-
malice review
o when does it apply
 general purpose public figure
 has to show to recover at all
 limted purpose public figure
 any statement about an individual that would have
relevance to the crime, actual malice would have to be
proven.
 private plaintiff
 does not have to show actual malice to recover, they
only have to show that the statement was negligently
made (to get damages for things like emotional distress,
etc.). However, if they want to get puntiitive damages,
then they do have to show actual malice.
Proof needed in a copyright case to prove the © was infringed
o Copying (three different ways to prove)
 Admitted
 Access and substantial similarity
 Available and striking similarity (example: you have certain
typographical errors that appear in both works...so striking is
harder to prove than substantial).
o Unlawful appropriation
o Defenses
 No we didn’t copy from plaintiff, we independently developed
this
 Or
 There are similarities, but we copied from this other source.
(two movies based on the same Shakespeare play)
Or
No, we just took the basic idea, characters are different, plot is
different
 Or
 Yes, we did take some of the stuff, but Fair Use defense applies
Fleeting expletives issue
o Question is now in front of the supreme court whether rit violateds
the 1st amendment.
 Be up on the analysis regarding FCC regulations (as it relates to
the 1st amendment)
o HBO v. Directors guild
 The director’s guilds rules to apply to all directors, even ones
wearing a different hat. The big picture point is that all
important unions are there to try to have minimum levels of
compensation and rights. Always setting these floors (this case
precluded HBO from going under one of these floors).
Clayton Act
o Where you find the actual causes of damages (where the relief – right
to monetary relief is at)) – referenced in a lot of an antitrust cases.
o Didn’t really go into the details how its different than sections of
Sherman act.
Net neutrality and Comcast case
o Case said no, but that doesn’t mean it never does...narrow holding.
o General thing
 Looking at net neutrality does that power there, constituional
issues....be prepared to answer practice problem. Similar to
fleeting expletives
Lanham act
o Artistic credit, you’re named as the crator of a movie and it was
amngled, or you made the movie and they left you rname off of it –
federal trademark claims sectin43a.
Also pay attn to possible k breach claims
Brown v. merchants
o Just ruling. Analyze a new medium and compare it to existing rules.
Fcc fair use
Defamation
Antitrust – Sherman act
Defamation
o Always keep in imind the common law elements
 If not met, then there is no claim.
Final exam itself
o Review exercises
 Defmation exercise specifically
 Copyright case (maybe lanham or licensing issue thrown in)
o 3 medium essay questions
o a mix of short answer/very specific/fill in the gaps


-
-
-
-
-
-
o Big picture questions – 1st amendment issues
o Really look at the question he’s asking you...answer question, do not
apply everything if he specifically guides you through what he wants.
 1st amendment is built into defamation though
o Know fair use factors (section 1, section 2)