Media Law in the News 3

Ariana Mafi

3/12/20

Media Law in the News 3

Professor Carlson

Copyright Infringement: Amazon

Part I – Summary of Issue
I recently had an informational interview with an ex-Amazon employee, and she shared with me that in her line of work she developed a technology that helped weed out fake and counterfeit products and brands on the Amazon Marketplace. After further research, I learned that this is a common issue that is presenting itself on Amazon all the time. I chose not to find a specific case, but rather tackle the issue and see what I can learn from these kinds of scenarios and how to handle the issue if it ever happens to me. One specific scenario that I want to examine would be when a third-party seller uses my (also a third-party seller) product images to sell their counterfeit products. Since my last media law in the news examined the plaintiff’s case for copyright, I want to explore the Fair Use defense in this application.

Link: https://www.digitalcommerce360.com/2020/02/10/how-to-identify-and-eliminate-counterfeits-on-amazon/

Part II – RULE – Legal Questions Raised & Applicable Rule
There are a few questions that come to mind when I look at this issue.

1)      Is this a violation of Intellectual property rights (copyright, trademark, patent)?

2)      For what purpose was the copyrighted work used without permission?

3)      What was the nature of the copyrighted work that was used without permission?

4)      How much and what portion of the copyrighted work was used without permission?

5)      What effect did the unauthorized use have on the copyrighted works market value?

Part III – APPLICATION – Applying the Relevant Doctrine / Precedent
This is a violation of intellectual property rights, specifically copyright laws. Rogue and counterfeit sellers commit copyright piracy by using an official sellers’ images to sell fake products. In the article, it discusses how counterfeit sellers are getting better at manipulating images just enough so that the detection software can’t detect that they are copyrighted images. However, for our intents and purposes, let’s say that the image was not manipulated and was an identical copy (just like many counterfeiters do on Amazon). Moving on, the images was not used for criticism, comment, news reporting, teaching, research, scholarship, or parody. Therefore, it is likely copyright infringement and the counterfeiters would not have a fair use defense. The Fair Use defense is a balancing test, so we must examine the rest of the questions to determine whether the counterfeiters could use a FU defense. Addressing question 3, the plaintiffs work was not scholarly or scientific, but was rather used to make money, therefore is likely more CI. Also, the entirety of the plaintiff’s work was used and copied exactly, therefore is CI. Finally, stealing the image and selling counterfeit products under a different brand takes business away from the plaintiff’s brand, could influence their reputation, and overall is hurtful and diminishing to what they sell. Considering all these parts, I would confidently say that the defendant does not have a fair use defense and did in fact infringe upon the plaintiff’s intellectual property.

Part IV – CONCLUSION
Overall, I found this issue very interesting because it came directly from someone I spoke to. This problem is not just some article but has a lot to do with people’s jobs. The person I chatted with said she had to work extra hard to maintain the integrity of Amazon’s platform by trying to find these copyright infringing brands, however people are getting much better at scamming the system. She also said that often Amazon takes down the accounts, therefore making it difficult for a plaintiff to make a case against anyone who infringes on their IP rights. I just hope that in the future, Amazon can continue to develop their technology to stop these brands from hurting the original content creators.

Media Post #10 Chapter 12

Topic Overview:
-Commercialization speech has evolved due to decades of supreme court decisions
-The Courts ruling in the Central Hudson case established that "government may constitutionally regulate non-deceptive advertising only with regulations that use the least speech-restrictive means to directly advance a substantial government interest".
- False/deceptive ads and ads for illegal products can be banned under the FTCA and the Lanham Act
- When cases involve alcohol and tobacco, the SC does not allow absolute bans on advertising for legal products/services, but does allow strict ad regulations when it comes to minors
-Many supreme court rulings have demonstrated the difference between political speech of corporations and commercial speech.
-The FTC doesn't allow spam, and requires truthful labeling of unsolicited texts and emails in bulk.

Key Terms:
Puffery- advertising that exaggerates the merits of products or services in such a way that no reasonable person would take the claim seriously, from deception
Litigated order- A FTC order filled in admin court and enforceable by the courts whose violation can result in penalties, including fines of up to $10,000 per day.

Important Cases:
Central Hudson Gas & Electric Corp v Public Service Commission of New York
The case that enacted the four-part test (Central Hudson test, see below), which determines when and which restrictions on commercial speech violated the FA.
Sorrell v IMS Health Inc.
A case that proved that several doctors and their prescription practices violated the FA, due to the restriction of the sale and use of medical records

Relevant Doctrine:

Central Hudson Test (After Sorrell)
After Sorrell, courts asked to rule on the constitutionality of a regulation on commercial speech must determine:
1. Is the commercial speech false or related to an illegal activity?
a. If yes, the speech may be banned or strictly regulated
b. If no, proceed with the test
2. Is the regulation of commercial speech based on its content?
a. If  yes, the court must apply strict scrutiny and presume the rule unconstitutional

b. If no, proceed with the test
3. Is the regulation of commercial speech content neutral?
a. If yes, the court must apply the Central Hudson test and strike down the regulation unless the answer to all of the following is yes
i. does the rule relate to a significant government interest?
ii. Does the rule directly advance that government interest?
iii. Is the regulation unrelated to the suppression of speech?
iv. Does the regulation "fit" the government interest without unduly infringing on speech?

Current Issues:
Reading this chapter reminds me of the false and deceptive advertising that we see in politics. The book discusses the false advertising in the 2016 election, and how 70% of the most aired ads were attack ads. I consider our current election, and how many candidates spent millions on campaigns that were likely not even representative of the candidate, but were just overly funded. Spending millions on campaigning rather than actual change seems like deceptive ads to me, but maybe i am just looking at things from an ethical standpoint rather than a legal one. Regardless, deceptive political ads will significantly impact voters in some mannor, and I find that really dangerous considering the political state we are in.
Questions:

Media Law in the News 2

Ariana Mafi

3/06/20

Media Law in the News 2

Professor Carlson

Copyright issues in the Media: Fortnite Dances

Part I – Summary of Issue
In class we discussed the issue of using copyrighted dances, and why a plaintiff can potentially bring a lawsuit forward against someone using said copyrighted dance. I wanted to further examine a lawsuit that was brought against one Fortnite dance, the Carlton, and why this lawsuit was taken down. This case comes under Intellectual Property law (the legal category including copyright, trademark, and patent law), and I would like to examine the plaintiff’s case for Copyright. This case is very complex; therefore, I am not going to look at any of the defenses. Copyright is an exclusive legal right used to protect intellectual creations from unauthorized use. Protected works include literary, musical, dramatic, motion picture, and many others. Ideas, history, and facts may not be copyrighted. When looking at this case, I am going to examine why Alfonso Ribeiro, the “original” creator of the Carlton dance, does not have a strong enough lawsuit to bring against Fortnite’s parent company, Epic Games.

Link: https://techcrunch.com/2019/03/25/fortnite-copyright-and-the-legal-precedent-that-could-still-mean-trouble-for-epic-games/

Part II – RULE – Legal Questions Raised & Applicable Rule
There are a few questions that come to mind when I look at this case.

1)      We need to determine what kind of Intellectual Property law this is: copyright (an exclusive legal right used to protect intellectual creations from unauthorized use), patent (exclude others from making, using, selling and importing an invention for a limited period of years), or trademark (a word, name, design, or symbol used to identify a companies goods and distinguish them from similar products other companies make)

2)      We also need to determine if the Carlton dance would be a protected work (see section above).

3)      Is the dance “novel and distinctive”

4)      Is this Fortnite dance a “choreographic work” or a “social dance step and simple routine”

5)      We need to examine the Plaintiffs case for copyright; - A copyright plaintiff must prove the following: 1) The work used is protected by a valid copyright- meaning it is an original work fixed in a tangible medium, 2) The plaintiff owns the copyright, 3) The valid copyright is registered with the copyright office, 4) And either: a. There is evidence the defendant directly copied the copyrighted work, or b. The infringer had access to the copyrighted work, and the two works are substantially similar (extrinsic and intrinsic)

Part III – APPLICATION – Applying the Relevant Doctrine / Precedent
To answer our first question, this is a copyright case since the dance is an intellectual creation. Additionally, the Carlton dance is a protected work, as a dance is not an idea, history or fact. When looking at dance moves, they come under a grey are of copyright law, as we discussed in class. The dance is novel and distinctive; however, the issue comes when examining if the Carlton is a choreographic work or a simple dance. According to the Copyright Office of California (where this case was brought), choreography commonly involves “the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole” and “a story, theme, or abstract composition conveyed through movement.” Dances that meet that standard cannot be copyrighted, even if they are novel or distinctive. I want to examine the plaintiff’s case before answering this question. Alfonso Roberto’s dance was an original work fixed in a tangible medium (The T.V. show he debuted his dance on), however how original is it? Roberto has said in many interviews that his dance moves for the Carlton were inspired by several different actors. Moving forward to ownership, most would say that Roberto does own the dance, however some courts could disagree and suggest that the employer, aka the T.V. show producers own the dance, as a character on their show did the dance. Additionally, for a copyright to be registered, it needs to meet the standards of which works are protected. The Carlton is three simple dance steps, composed of swaying back and forth and step-touching together. These would most likely be considered a simple dance, therefore is not a protected copyright, no matter how novel or distinctive it is. Therefore, the copyright would likely be rejected from being registered. When looking at the final point of the plaintiff’s case, Fortnite directly copied the work, had access to the work (since it was on T.V.) and that they are both substantially similar.

Part IV – CONCLUSION
Through this analysis, I have determined that it is clear Roberto does not have a case. His work may not be original enough and he may not even have ownership of the dance. Those two points are subjective; however, you need to have a registered copyright to bring a lawsuit, and the dance is not protected due to its simplicity. Therefore, regardless of how frustrating it may be, Roberto dies not have a case for copyright against Epic Games. Overall, I believe the lesson learned is to always ask permission. This is one plaintiff and one dance that does not have a case, but I can imagine that there are many other scenarios like this one where a case would stand. Regardless, these types of cases go beyond legalities and move towards an ethical dilemma; in order to avoid any legal or ethical implications, it is simply better to ask for permission before using someone else’s work.

Media Post #9 Chapter 11

Topic Overview:
- Intellectual property law includes copyrights, trademarks, and patents
-The 1976 copyright act defines copyright as an original work fixed in a tangible medium
-Protected works include literary, musical, dramatic, motion picture, and many others. Ideas, history, and facts may not be copyrighted
-An original work is copyrighted from the moment it is fixed in a tangible medium
-Copyright protects the creators right to reproduce the work, make derivative works and distribute, perform or display a work
-Four categories: 1) Out of copyright ("in Public Domain") when current law took effect. The work still is in the public domain
2) Copyrighted under previous (1909) law, still in copyright when new law took effect. CR lasts 95 years
3) Copyrights on works created on Jan 1st 1978 and after, last for the creators life plus 70 years (what we need to know)
4) Works made for hire- CR lasts 95 years from publication or 120 years from creation (whichever is shorter


Key Terms:

Important Cases:
Matal v Tam
A case where the Supreme Court ruled that a federal law prohibiting disparaging trademark names was unconstitutional under the First Amendment.
American Broadcasting Companies Inc v Aereo Inc
A case where The Court ruled that the service provided by Aereo, allowing subscribers to view live and time-shifted streams of over-the-air television on Internet-connected devices, violated copyright laws.

Relevant Doctrine:

Plaintiff’s Case for Copyright- A copyright plaintiff must prove the following

1) The work used is protected by a valid copyright- meaning it is an original work fixed in a tangible medium

2) The plaintiff owns the copyright

3) The valid copyright is registered with the copyright office

4) And either:

a. There is evidence the defendant directly copied the copyrighted work, or

b. The infringer had access to the copyrighted work, and the two works are substantially similar (extrinsic and intrinsic)

Fair Use Defense- balancing test

1) For what purpose was the copyrighted work used without permission?- more likely a fair use if used for criticism, comment, news reporting, teaching. research, scholarship, parody

2) What was the nature of the copyrighted work that was used without permission?- more likely fair use if the plaintiffs work is scholarly or scientific vs entertainment money (CI)

3) How much and what portion of the copyrighted work was used without permission?- based on percentage of work used rather than number of words. Was the part used particularly interesting r important?

4) What effect did the unauthorized use have on the copyrighted works market value?- Probably the most important factor, did this impact the creators ability to make money?

Transformative Use Defense- one of the primary defenses used today when arguing fair use. Transformative use is generally fair use if the answer to two questions is "yes":

1) Has the material you have taken from the original work been transformed by adding new expression or meaning?

2) Was value added to the original by creating new information, new aesthetics, new insights, and understandings?

Current Issues:

Questions:

Media Law in the News 1

Companies are Stealing Influencers Faces

Part I – Summary of Issue
It is very typical for celebrities to be used in media, as influencers and in marketing. The issue today, however, can be found in whether their faces were used with permission, or not. This is an area of privacy tort law called appropriation, which is the use of a person’s name, picture, likeness, voice, or identity for commercial or trade purposes without permission. More specifically, we are looking at commercialization (the appropriation tort used to protect people who want privacy) and right of publicity (the appropriation tort protecting a celebrity’s right to have his or her name, picture, likeness, voice, and identity used for commercial or trade purposes only with permission).

The specific story I am addressing involves Bernadette Banners, a YouTuber famous for her historical sewing videos. She recently found out that a fast fashion company was advertising one of her dresses, with her headless image, for $40, which is not even half of the materials cost of her original dress. I want to examine the plaintiff’s case for right of privacy and see if Bernadette could have a strong enough case against the fast fashion company.

Link: https://www.wired.com/story/youtube-instagram-influencers-stolen-faces/

Part II – RULE – Legal Questions Raised & Applicable Rule
There are a few questions that come to mind when I look at this case.

1)      We need to determine what kind of appropriation tort it is, commercialization or right of publicity. Therefore, we need to determine whether Bernadette wants to remain private and unknown except to family and friends, or if she wants to be known and to be a celebrity.

2)      We also need to determine if Bernadette’s name or likeness was used

3)      We need to determine whether that name or likeness was used for commercial purposes

4)      We need to examine if Bernadette ever gave permission for her name or likeness to be used

5)      We need to determine whether the commercial use was of and concerning her

6)      We need to determine if it was widely distributed

There are also a few defenses we may want to look at to determine whether this case is strong enough to take to court.

1)      The first amendment may be a defense taken against this case, therefore we would want to determine whether the fast fashion company passes the artistic relevance test (whether the picture is relevant to a disputed work’s artistic purpose), transformative use test (whether the creator transformed the picture for artistic purposes), and predominant use test (whether the defendant used the picture as protected expression).

Part III – APPLICATION – Applying the Relevant Doctrine / Precedent
To answer our first question, this is a right of publicity tort case. Bernadette is a famous Youtuber and celebrity of sorts. In order to win a right of publicity case, our plaintiff must prove whether her likeness was used for advertising or other commercial purposes without permission, whether the commercial use was of and concerning her, and whether it was widely distributed. Bernadette’s likeness was certainly used, since the fast fashion company used a picture of her in the dress in their advertisements. Although it was a headless picture, because the market is so niche in historical sewing pieces, it is clear that this was Bernadette’s photo. Additionally, the photo was used for commercial purposes- the fast fashion company used the photo as an advertisement to sell their own knock off versions of Bernadette’s dress. Additionally, based on the article I read, Bernadette did not give the fast fashion company any permission or consent to use her photo. The commercial use of the headless photo was of and concerning Bernadette, as she spent a lot of time, money, and effort on her pieces and the fast fashion company was trying to display their cheap versions as if they were hers. Finally, it can be assumed that since this is a popular fast fashion company (unnamed in the article), the photo was widely distributed enough.

When looking at a First Amendment defense against the plaintiff’s case, the fast fashion company does not pass any of the tests discussed above in the prior section.

Part IV – CONCLUSION
Through this analysis, I have determined that Bernadette would have a strong plaintiff’s case against the fast fashion company, and that they would not have a strong enough defense against her. Learning about protecting privacy has been interesting, as a lot of cases are far more subjective than other areas of media law. Additionally, the defendant has several opportunities to bring appropriate defenses that could take down a plaintiff’s case. Overall, the most valuable takeaway from examining this case for me was to really pay attentive care in getting permission/consent if I ever must use someone’s photo in any advertising or commercial purposes. As a marketing major, I believe this will be very applicable to me in any future media job I may have.