LAW 311 Entertainment Law Cram Guide PDF

LAW 311: Entertainment Law Cram Guide Class Two: Introduction to Television What is Television? - Television is the distribution of audiovisual content to individual consumers, at times and locations and on devices of their own choosing Difference between Film and Television:...

LAW 311: Entertainment Law Cram Guide Class Two: Introduction to Television What is Television? - Television is the distribution of audiovisual content to individual consumers, at times and locations and on devices of their own choosing Difference between Film and Television: - Filming a movie is way more expensive than filming a pilot for a TV show - Writers for movies will sell their script and outsource it to a company, where writers for television have more impact - Talent can easily be replaced in Television Unscripted Television: - Talent can do a good job of carrying reality television - Unscripted Television is really good at being cost effective - The format can truly carry unscripted television, even when talent disappears or is not apparent - Talent can be irreplaceable only if the talent is truly linked to the show, like Oprah for example Serials: - These shows span many seasons and include many episodes over a long period of time - Must make sure that actors want to work for longer periods of time and are focused on the project Key Characteristics of Television: - Importance of Writers - Unscripted Content - Serialized Shows - Dual Revenue Model Who are the players in Television? - Talent - Studios - Networks/Streamers - Broadcast Stations - MVPDS or Multichannel Video Programming Distributors - Advertisers - Talent Representatives Talent: - Talent is distinguished by Above the Line and Below the Line - Writers and Actors would be considered Above the Line, while Lawyers would be considered Below the Line - Talent backend is when actors are bigger than the project themselves, and they get benefits that have a significant amount of monetary value Studios: - In charge of producing shows  - Production of shows includes the filming of the show, while Post Production includes the editing and final touches on the show once filming concedes - Studios will often finance a whole bunch of projects, many failed projects, in search of the one project that will make it big Networks/Streamers: - Streaming Networks such as Netflix have their own studios, and what happens, is Netflix’s Studio Affiliate will sell it directly to Netflix - Licensing Agreements are mainly used to protect intellectual property - Protecting intellectual property is important for avoiding copyright, and allows a network to exclusively air the show they bought from the studio Advertisers: - Networks will charge advertisers a certain amount for ads to be placed on their network for a show, the monetary exchange being influenced by TV Ratings - When TV Ratings go down, networks will either give advertisers a refund or will give them free advertising time on another way as a way of making sure many eyes see their product - Some Networks and Streamers will choose the ads that play during their show, the ads sometimes being related to the show - MVPDS - Brands such as Comcast and Spectrum Online Video Distribution Types of these Distributions: - SVOD or Subscription Video on Demand, includes paid access to content libraries, like Netflix  - AVOD or Advertising-Supported Video on Demand; Free content with ads, like Youtube - TVOD or Transactional Video on Demand; Paid access on a per-episode basis, like Itunes - FVOD or Free Video on Demand; Free access without ads - VOD: Used as a broad term covering various forms of on-demand content delivery Challenges in the Television Industry: - Disruptions caused by streaming; downstream effects? - Leverage - Profafitibality - Contraction Class Three: Introduction to Film What is film? Film is an audiovsiual program that people watch at a theater or at a place and time of their choosing Stages of Making a Film: - Pre Production - Production - Post Production Types of Movies: - Fiction vs Non Fiction - Action - Comedy - Drama - Horror - Animated Players in Movies: - Producers - Writers - Directors - Actors - Technical Stuff - Studios  - Distributors Producers: - Film producers conceptualize or pick a pre-written script, assemble the creative team and director, organize a film's funding, and build high-profile connections. Writers: - Write the scripts for the film, while also revisiting the script at any point during filming - Script is always being reworked, whether it is due to a director or even an actor who wants for changes to be made to said script - In case a line does not elicit a certain reaction, there are always writers on set to change the script Directors: - In charge of directing actors during filmings, whether it is how they deliver their lines and how they should act during certain scenes - Also in charge of filming - Some Directors also write their own scripts Actors: - Back then, Actors would only be exclusive to studios, but now it’s like free agency, where money is a huge selling point - Actors can also read a script that they like, and that is how they are attached to films Technical Staff: - In charge of doing editing for films, adding VFX and are backstage and below the line Studios:  - In charge of filming the movie, and are also in charge of producing and financing a movie - Studios when financing these movies, want their films to be a success, so they can get a good ROI Distributors: - In charge of releasing a film and also in charge of the marketing for the film - They will also pay a lot of money for advertising, as that can be a driving force as to why people will see a film Film Windows: - Theatrical - Home Video - Streaming Film Distribution Agreement Key Terms: - Term - Fees - Territory - Rights Granted - Exclusivity - Languages Term: - A term is the length of the agreement, and it is binding for however long you set it Fees:  - Fees can be in the form of licensing between distributors, studios, and even exhibitors - Distributors will assess fees based on star power, budget, and consumer reports - Fees can also be assessed based on previous history, especially if a film has been successful Territory: - Territory is especially dependent on who is distributing the film Languages: - Talent can approve whether a film is dubbed or not - Can be more costly for a distributor to dub a film Rights Granted: - Where can the film be distributed Exclusivity: - Distributor needs exclusivity to protect their investment, as they want the movie to be in theaters and not on a streaming service like Netflix, as they want to make as much of a profit as possible Class Four: Music and Guilds What is a Song? - Dual Copyright - Composition and Master equals a song Primary Sources of Revenue Sources for Musicians: - Publishing - Performing - Touring Notes about Music Publishing: - In Music Publishing, you must always go to the person who wrote the song - A lot of singers and artists who are not big in performing, publishing, and touring, often make a bulk of their money through their unrelated business ventures The Players in the Music Industry: - Composers, Performers, and Producers - Music Publishers - Performance Rights Societies - Record Companies - Tour Promoters Performance Rights Societies: - BMI and ASCAP are the biggest of these societies  - Venues will get a blanket license to have access to these songs, while the artists and producers get compensated in the process Record Companies: - Record Companies are good because they advertise and promote their artists really well - When artists give a share of their salaries to these companies, they will have access to the benefits of these companies - Record Companies pay for studio time - Being backed by a Record Company can be good for an artist’s PR Tour Promoters: - In charge of promoting tours - Tour can only be really successful if the artist is mainstream and the record company is legit and willing to back them up fully - Job is to manage tour dates and ticketing Common Pitfalls of the Music Industry: - Bankruptcy and Tax Evasion - One-Sided Contracts - Lawyer’s role is critical Guilds What are Guilds? - In the Music Industry, the Guild is WGA or Writers Guild of America Who are the contracts with?  - Contracts are with the different studios What do the contracts say? - Minimum Pay, Residuals, Working Conditions, etc. 2023 Strikes SAG-AFTRA: - They decided to go on strike, because for a lot of the less famous members of the Guild, having a steady minimum payment with solid residuals is important to them - Also, AI content in film and television is an issue that affects every actor or actress, regardless of fame - SAG-AFTRA wants to make sure that the actors and actresses that are portrayed through AI are payed WGA Importance of Guilds: - Always exist in the background - Very Complicated! Class Five: First Ammendment and Free Speech What does the First Ammendment Entitle? - Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances Does the First Amendment Apply? On Campus Protests at USC: - The First Amendment would not apply, as USC is a private institution, and the cop is enforcing the rules of USC On Campus Protests at UCLA: - The First Amendment would apply here, as UCLA is a State School, meaning they receive public funding, and are not able to enforce their own rules to a level such as USC Protests outside the US Capitol: - The First Amendment would also apply and can be utilized here, as the Capitol is a public building, meaning there are restrictions, but you can protest and argue the first amendment if removed My Family’s Thanksgiving Dinner Table: - The First Amendment would not apply here, as a house is one’s private property, and they can have their own rules as to what is being said in the house Netflix: - Netflix is a website, meaning the First Amendment does not apply Donald Trump’s Tweets:  - Trump can say what he wants, however, since Twitter is it’s own private domain, the First Amendment would not apply here, as they have their own restrictions as to what is being said Types of Government Action: - Laws - Rules - Public Schools - Police Enforcement First Amendment Protections: - Words - Actions - Freedom not to Speak - Unpopular and Controverisal speech Government Regulations: - Content Based Regulations; Police Dept of Chicago vs Mosley (1972) - Standard of Review: Strict Scrutiny; Narrowly Tailored and Compelling Governmental Interest; see Texas vs Johnson (1989) Permissible Government Regulations: - Public Forum; Public Park or Fast Food restaurant - Non-Public Forum; Public School or Government Employee Office Time, Place, and Manner Restrictions:  - Public Forum; Content Neutral, Narrowly tailored to a significant government interest, and must leave open alternate channels of communication - Non Public Forum; Viewpoint neutral and Rationally related to a legitimate interest Types of Unprotected Speech Fighting Words: - Likely to Incite - Immedeate Breach of the Peace Reference: Chaplinsky vs New Hampshire (1942) and Cohen vs California (1971) Incitement: - Intended to produce imminent lawless action - Likely to result Reference: Brandenburg vs Ohio (1969) Obscenity: - Prurient Interests - Pattently Offensive - Lacks Artistic Value Class Six: Censorship What is Censorship? - Censorship is the suppression of ideas and information that certain persons, individuals, groups, or government officials find objectionable or dangerous Obscenity in the United States: - Roth vs United States (1957); If you mail obscene material, it is a crime, and when Roth did this, he was arrested - Miller vs California (1973); Miller was distributing adult pamphlets through the mail, and he got detained in California for giving these out, and this was because California had a statue that prohibited this Three Prong Test: - Average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest - The work depicts or describes, in a patently offensive way, sexual conduct - The work lacks serious literary, artistic, political, or scientific value Note: Average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest Community: National or Local Standard: - It is really hard for people in some areas to relate to people in other areas - With local community, you are getting a lot of people who understand contemporary community standards - Some will use either local or national standard depending on jurisdiction Prurient Interests:  - “A shameful or morbid interest in nudity, sex, or excretion” - Sex Manual (Book was protected) - Straight up Pornography (Obscene) Patently Offensive Sexual Conduct: - Representation of Sex Acts Work lacks serious literary, artistic, political, or scientifc value: - Reasonable Person Standard - Pandering; Magazines with articles and Romance novels are examples Obscenity Summary: - Average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest; National or Local Interest? Shameful or Morbid interest? - The work depicts or describes, in a patently offensive way, sexual conduct - The work lacks serious literary, artistic, political, or scientific value; Nationwide Standard and Pandering Obscenity Regulations: Reno vs ACLU (1997): - Struck Down - Conduct Regulation using strict scrutiny - Supreme Court case with the ruling anti-indecency acts violated freedom of speech - The type of content, indecent content, was banned, which wasn’t allowed Ashcroft vs ACLU (2004): - Content Regulation, meaning we have to use strict scrutiny - We do not want minors to have exposure to indecent content, as it is harmful - Harmful is very vague, and it is hard to determine what is harmful - Struck Down Telecommunications Act of 1996: - Struck Down - Channel Blockers can happen, meaning you don’t have to stop everyone from seeing this obscene content Question: What about Porn? - Texas PornHub Case - Content: Do you want anyone under 18 to view porn? - In Texas, you must show a picture of a valid 18+ license to view porn Why Self Regulate? - Reputation Purposes, as you want to make sure that you have a good reputation when trying to market and produce media, as you want a business and customers to be happy - Legal Reasoning, as you do not want to face legal action because you put obscene content in a film, and people got mad Self Regulation in Film and TV: - MPAA - Rating System  - Liability Yakubowicz vs Paramount Pictures (1989): - Incitement Case - Intended to produce lawless action - Likely to Result - Tendency to lead to violence =/= incitement Television Violence - Graves vs. Warner Bros (Jenny Jones) (2002) Television: - Self Regulation - FCC Regulations: Bar; Obscenity, Indecency, and/or “Must describe or depict sexual or excretory organs or activities” - Profanity; Grossly Offensive Language and Prohibited between 6 AM and 10 AM Music: - Incitement; see Davidson vs. Time Warner (1997) - Artistic Value - Self Regulation Class 7: Intellectual Property: Copyright Intellectual Property: - What is Intellectual Property? - “Creation of the Mind” What is protected by Law? - Copyright - Trademark - Patent - Trade Secrets Ideas: - Simple Ideas are protected by yourself, and this is your job to do so - It is also your responsibility not to tell anyone and enter into contracts - Ideas are protected in Implied and Express Contracts Quasi Contract Express Contracts: - Needs an Offer, Acceptance, and Consideration - Offer: Objective Manifestation to be bound by the terms you are offering someone - Acceptance - Consideration: Some sort of legal detriment or benefit involved - Does not need to be written down to have an enforceable contract Idea Theft: Quasi Contract: - Plaintiff confers a benefit - Plaintiff reasonably expects to be paid - Defendant would be unjustly enriched if allowed to retain the benefit without paying Blaustein v. Burton (1970): - No copyright, trademark, or patent - Defendants used many of Blaunstein’s ideas he discussed with them to create a movie without paying him - Court decided there was enough evidence to raise a triable issue of facts as to whether there was an implied contract to compensate Blaustein at the going rate of a producer for the use of his ideas - Reversed Summary Judgement and Ultimately settled Jordan-Benel v. Universal City Studios, Inc. - Sci-Fi had to license Purge from Universal to make TV series; Idea theft claim - Jordan Benvel had wrote script for movie called Settlers Day which he sent to UTA to shop around studios - Not repped by UTA and UTA said no - 2 years later, James D. repped by UTA writes movie called The Purge which is extremely similar to movie Jordan sent to UTA Quasi Contract Breakdown for Jordan-Benel v. Universal City Studios, Inc. - Jordan’s Idea = benefits UTA - UTA says their own writer came up with that idea - Jordan reasonably expects to be paid as UTA used his idea  - UTA used new script so they argue its not his idea - Jordan argues this is a relationship between writer and agency; writers are paid when they send scripts in - UTA argues they do not represent him, so he is a random person and should not expect payment - Lower court goes with UTA’s motion to dismiss and says UTA owes Jordan nothing - Appellate Court said this is incorrect, there could be a quasi-contract claim and sends it back to lower court where it eventually settles Release Agreements: Non Disclosure Agreements: - Nobody can talk about or do anything with anything we learn from this meeting Disclaimer of Confidentiality: - Parties agree that confidential information does not include any ideas for audio-visual companies submitted by Producer to Company - Common - Enforces the idea that its not secret, it is just information that is out there - You do not have to pay for random ideas - Party is explicitly agreeing to the idea that this element is not a private idea Contracts of Adhesion: - Contract is so unevenly stacked and bargaining power is so lopsided, that this contract is not even enforceable - Bad spot to be in, and you will probably lose Spinello v. Amblin Entertainment (1994): - Court ruled it was Spinello’s fault for taking the meeting and blurting his ideas out Studios: Development Agreements: - Producer acknowledges that Network is the owner of of all rights in and to Program and all elements thereof agrees that the Materials prepared hereunder are being prepared as work-made-for-hire Copyright - 17 U.S. Code § 102: Copyright protection subsists in original works of authorship fixed in any tangible medium of expression: - Literary works; - Musical works, including any accompanying words; - Dramatic works, including any accompanying music; - Pantomimes (dancing) and choreographic works - Pictorial, graphic, and sculptural works - Motion pictures and other audiovisual works - Sound recordings; and - Architectural works However, it does not apply to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work Copyright Requirements: - Copyrightable Subject Matter - Fixtation in a tangible medium of expression  - Cannot just be a thought, has to be written or filmed or done something with your idea - Originated with or created by the author Derivative works: Gracen v. Bradford Exchange (1983): - Substantial difference between the original and derivative required - Painter entered contest to draw Wizard of Oz stuff for the movie but did not like the contract - Studio used it anyway and court ruled the painting was not substantially different enough to get copyright protection Copyright Formalities: - Automatic Protections - Registration Benefits; Prerequisite to a copyright claim and shows Evidence of ownership; - Deters people from attempting to steal your idea - Protection against innocent infringer defense - Poor Man’s copyright - send evidence in mail and do not open it (Post Office copyrights it for you) or save it on something like a computer - Negatives - why store your ideas here, it does not give you the benefit you think it is - There are creative ways to show the envelope is not sealed; Just register your copyright to monetize it Ownsership: - Sole Ownership Joint Work: - Prepared by two authors  - Objective Manifestation to merge contributors into a whole - Importance Examples of Joint Work McMunigal v. Block (2010): - Two Professors wrote a textbook together but then relationship broke apart - One wanted to file as a independent works instead of joint works and court decided that it was indeed a joint project as the original intent was for it to be one textbook Aalmuhammed v. Lee (2000): - Spike Lee was making a movie on Malcolm X - Aalmuhhamed was credited as Islamic Helper and Aalmuhhamed was upset with this - Said it was a joint production when he really just did a bunch of consulting - No subjective manifestation that it was intended to be a joint work Work for Hire: - Made within the scope of employment - Specially ordered or commissioned - Instance and Expensed - Note: Marvel Characters v. Kirby (2013) Copyright Rights: - Copy or Reproduce - Adapt/Prepare derivative works  - Digitally Transmit Audio Works; Radio transmissions are protected; songs played from radio stations (non-satellite) - Distribute/Sell Publicly Perform the Work: - Exception: Non-Profit performances, Non-Dramatic literary works and music, No admission fee, and/or no No commercial advantage Copyright Issues: - Transfer; importance of terms matter; see Stewart v. Abend (1990) - Termination; Automatic termination and who can terminate - Performance Rights; PROs and TV; see American Broadcast Companies Inc., v. Aereo (2014) - Moral Rights; Copyright - 70 years or 90 years if work for hire and Can be extended Class Eight: Fair Use/Intellectual Property II Exclusive Copyright Rights: - Copy or Reproduce - Adapt/Prepare derivative works - Distribute/Sell - Publicly perform the work - Digitally transmit audio works Copyright Infringement Elements: - Ownership of Copyrighted Work - Defendant copied and the work or took another exclusive right of the owner; Includes plagiarism and Access to the work and substantial similarities of ideas and expression - No defenses exist Film Infringement: - Similar Ideas and Expressions - Sheldon vs MGM Pictures (1936): MGM tried to copy a play, instead got book rights to another book, but pretended to use the book and instead ended up using the play and put a twist on it - MGM vs. American Honda Motor Company (1995): Honda tried to “copy” James Bond in a Civic commercial, using Bond ideals such as a nice suit, British accent, and other Bond specialties. Honda tried to say it was a parody, and MGM ruled that the commercial will be paused, an injunction, before a further ruling - Steinberg vs. Columbia Pictures (1987): The New Yorker copied the illustrations for the movie poster for Moscow of the Hudston starring Robin Williams. The pictures were  illustrated by Steinberg, and it was completely used by The New Yorker as the plagiarism by blatant Television Infringement: - Ringgold vs. Black Entertainment Television, Inc. (1997): Copy of a TV poster was put on a quilt, and was on the background of a TV set, and the court argued it was diminutive, but ruled as infringement Music Infringement: - Sampling; “though shall not steal” - Sampling Case: Grand Upright Music Ltd. vs. Warner Bros Records (1991): Biz Markie had copied another song called Alone Again, and he copied it but added a twist, therefore it is copyright infringement - Sampling Case: Bridgeport Music vs Dimension Films (2005): Dimension copied and altered the piano noise for 100 Miles and Runnin by NWA - Question of Fact - Lay Sampling Test: Defendant took something from plaintiff’s work so much of what is pleasing to the ears of lay listeners, such that they stole something that belonged to the plaintiff - Question of Fact Case: Baxter vs MCA: John Williams and MCA took a bit of the same six notes from a Baxter song, however, the notes were not in sync, but appeals court ruled to send it back to a jury - Quesiton of Fact Case: “Blurred Lines” Case: Robin Thicke copied some of the music notes in one of Marvin Gaye’s songs - Quesiton of Fact Case: “Thinking Out Loud” Case: Ed Sheeran copied some of the music notes in one of Marvin Gaye’s songs - Contributory Infringement; Providing equipment to infringe or known or have reason to know of infringement - Contributrory Infringement Case: A and M Record vs Napster (2001)  - Contributory Infringement Case: MGM vs Grokster (2005) Defenses: - Parody - Fair Use - Innocent Infringer; Strict Liability, Not a Defense, No Notice Fair Use: - Purpose and Character of the Use; Commercial or Educational? Transformative Use? - Nature of the Copyright Work; Creative or Technical? Published? - Amount and Substantiality of the portion used in relation to the whole; How much of the original work is used? Which Part? - Effect of the use upon the potential market value for or the value of the copyrighted work; Hurting market for original work? Fair Use Examples: - Harper and Row vs. Nation Enterprises (1985): Leaked an excerpt of a Gerald Ford biography, however, the book was not published Fair Use Issues: - Defense; Why is this not ideal? - Unpredictable; Judge or Jury decides? - Asking for forgiveness or permission? Parody and it’s Requirements: - New work based on an old work  - Old work is clearly recognizable - Criticizes or comments on the old work - Does not take more than is reasonably necessary - Does not impact the market for the old work Remedies: - Injunctions - Money Damages; Based on Calculation and Apportionment - Statuatory Damages; Up to $150,000; see Marcus v. Rowley (1983) - Criminal liability; Willfullness and Financial Gain - Attorneys Fees Class Nine: Intellectual Property: Trademark Trademark: - A Trademark is a word, phrase, symbol, design, or a combination of these things that identifies your goods or services. It’s how customers recognize you in the marketplace and distinguish you from your competitors - Purposes; Consumers and Goodwill - Trademark Rights; Exclusive Use - Duration; Continued Use Note: You do not need to register a trademark, and if you do not, no one can steal the trademark Trademark Requirements: - Use; First in Time, First in Right - Distinctiveness; Fanciful and Arbitrary, Suggestive, and Descriptive; Has multiple words or secondary meaning - Generic; Marketing is very vague, needs to have secondary and descriptive meaning - Scope; Must place your trademark in a specific scope or niche Registration: - Procedure; 30 day period - Opposition Period; Grounds to oppose - Benefits; Listed, Ownership, Customs, Social Media Trademark Infringement: - Legally protectable trademark; Benefits of a registration  - Ownership of the Mark; Seniority - A likelihood of confusion; Initial interest, non purchaser Likelihood of Confusion Factors to Consider: - Strength of the plaintiff’s mark - The similarity between the two marks - The similarities of plaintiff’s and defendant’s products or services - The likelihood that the plaintiff will expand it’s business into defendant’s field - Evidence of actual confusion - The quality of defendant’s products - The sophistication of buyers - Defendant’s intent Trademark Dilution- Blurring - Distinctiveness - Famous; Household Name - Dilution by Blurring; Distinctiveness is impaired by association with another mark - Factors of Dilution by Blurring: Similarity of marks, Any associations between them, How exclusively the owner is using the mark, and the intent to associate with the mark Trademark Dilution- Tarnishment: - Distinctiveness - Famous  - Tarnishment; Mark is harmed through association with another mark, similar, lower quality mark, and portraying the mark in an unflattering way - Cases where a mark was portrayed in an unflattering way: Dallas Cowboys/Adult Film and George of the Jungle 2 cases Defenses: - Fair Use (Classic): Using a mark to describe your own services; must be descriptive - Fair Use (Nominative): Referring to the owner of the mark’s product; Is using the trademark necessary? Is the mark used more prominently than necessary? Any false suggestion or sponsorship of endorsement? - Parody: Artistic Relevance; Likelihood of confusion or Dilution? - News Exception Remedies: - Injunctive Relief - Monetary Damages; Actual Damages, Disgorgement, and Attorney Fees Class 10: Personality Rights Privacy Rights: - Intrusion upon seclusion - Public disclosure of private facts - False light - Appropriation - State Law Rights Intrusion Upon Seclusion and it’s Elements: - Intentional intrusion on private concerns; Private - Highly offensive to the reasonable person - Information disclosed that would have caused shame, mental suffering, or humiliation to the person of ordinary sensibilities - Cases: Boring vs. Google (2010) and Nader vs. General Motors Corp. (1970) Public Disclosure of Private Facts and it’s Elements: - Public Disclosure - Private Fact - Highly offensive to a reasonable person - Is not of legitimate concern to the public; Social value of the facts, Extent of violation of private affairs, Plaintiff a public figure? - 1st Ammendment? False Light and it’s Elements:  - Published information about the plaintiff - Portray the plaintiff in a false and misleading light - Highly offensive and/or embarrassing to the reasonable person - Defendant published with reckless disregard for it’s offensivness and the truth Appropriation and it’s Elements: - Knowingly - Uses another’s name, voice, or likeness; recognizable - For commercial purposes; Expressive Speech? Transformative? Examples of Appropriation: White vs. Samsung (1992) and ETW Corporation vs. Jireh Publishing (2003) Defenses to Privacy Claims - Death; Right of Publicity - Cosnent - Newsworthy; Social value of the facts, Extent of violation of private affairs, Plaintiff a public figure? - 1st Amendment; Transformative Damages: - Injunction - Attorney’s Fees Monetary Damages: - The Plaintiff’s level of fame - How much money the plaintiff has earned from their likeness in the past - Previous contracts and licences that includes royalties - Whether the plaintiff’s publicity rights have already been licensed - How much money the defendant made from their use of the plaintiff’s likeness Class Eleven: Defamation What is Defamation? - False Statements that causes injury to the Plaintiff’s reputation - Factual Statements; Dramatizations: would a reasonable viewer think the content was a statement of fact? Defamation Examples: - Defamatory Statements - Of and Concerning the plaintiff - Published to a third party - Falsity - Malice Defamatory Statement: Defamatory Statements: - Subject one to hatred, ridicule, or contempt - Reflect negatively on one’s reputation for morality, integrity, or honesty - Tend to negatively affect one’s financial status or standing in the community Slander per se: - Loathsome Behavior - Unchaste Behavior - Serious Crime or Immoral Conduct - Harmful to a Business or Proffesion Of and Concerning the Plaintiff: - Naming the Plaintiff - Describing the Plaintiff; Those who already know the plaintiff reasonably connect the plaintiff to the defendant based on circumstances or facts they already know - Recipient reasonably understands the statement is directed at the Plaintiff - Groups Published to a Third Party: - Any publication counts - Fault: At minimum, negligence; Unforeseeable publication - Republication Rule; Third party content/Internet Providers: Section 230 First Amendment Concerns: Public Figures: - Private Figures - General Public Figures; Prominence in Society - Limited Purpose Public Figures; Thrust themselves into the spotlight or Bootstrapping Falsity: - Plaintiff must prove falsity if they are a public figure Malice: - Actual knowledge of the falsity of the statement - Reckless disregard as to the truth of the statement; Private Individuals: Negligence - Clear and Convincing evidence required How to Prove Malice: - Failure to investigate - Knowledge of contradictory facts - Exaggerations - Assuming the worst is true - Sources - Timing Defenses: - Death - Privellage; Absolute, Qualified, Fair Report - Consent - Truth; If not a Public Figure - Retraction Defamation Flow Chart: 1. Statement of Fact? If yes, then 2. Is the plaintiff a public figure? If yes, then keep going. If no, skip to Step 5 3. Is the statement false? If yes, then 4. Did the defendant act with malice? If yes, then 5. Is the statement defamatory? If yes, then 6. Is the statement of and concerning the plaintiff? If yes, then 7. Was the statement published to a third party? If yes, then 8. Defamation claim successful, subject to defenses