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.

Reading Summary #8 Chapter 10

Topic Overview:
-If the government is unable to prove that material has any parts of the Miller Test (see below), the material cannot be found as obscene
- whether material lacks serious literary, artistic, political, or scientific value is determined by using national criteria based on expert testimony
- It is illegal to provide minors with sexually explicit content that would not be obscene if given to an adult
-The FA protects indecent material, EXCEPT in broadcast television and radio
- The supreme court has rejected several attempts to prevent children from seeing sexually explicit material on the internet

Key Terms:

Important Cases:
Federal Communications Commission v Fox Television Stations Inc.
A decision by the Supreme Court that upheld regulations of the Federal Communications Commission that ban "fleeting expletives" on television broadcasts, finding they were not arbitrary under the Administrative Procedure Act.

Federal Communications Commission v Pacifica Foundation
A Supreme Court decision that defined the power of the Federal Communications Commission over indecent material as applied to broadcasting. The decision reaffirmed the notion that the government has a freer hand to regulate the broadcast medium than other forms of media.

Relevant Doctrine:

Miller Test for Obscenity- The Miller test for obscenity includes the following criteria: (1) whether the average person, applying contemporary community standards would find that the work appeals to prurient interest (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) whether the work lacks serious literary, artistic, political, or scientific value.

Current Issues:
The main issue I think of when reflecting upon this chapter is just the fact that the government really cant protect children from seeing explicit material. It is unfortunate, because as a coach and past babysitter, I have seen many children get into the wrong kinds of material online. These explicit materials can be harmless, but are often times negatively impact kids' lives. I understand that restricting certain types f explicit material is suppressing ones freedom of speech and does not abide with FA law, i just wish there was some way we could better monitor the kind of material children have access to. I suppose for now, it is simply the job of the parents.
Questions:

Media Post Chapter 9 #7

Topic Overview:
-Federal law first regulated electronic media (radio) in 1912
-Today the Federal Communications Commission uses its powers to adopt regulations affecting large segments of the electronic media, as well as licensed spectrum users and enforcing the commissions regulations
-The FA rights of broadcasters are not equal to those of the print media
-Spectrum scarcity limits broadcasting to a select few who obtain FCC licences
-Every broadcast station must have an FCC license
-Section 315 of the communications act of 1934 requires broadcasters and cable systems to give equal opportunity to use the airwaves to legally qualified candidates running for the same office
-Federal Law and Fcc rules require broadcast television stations to show at least three hours per week of programming that meets children's intellectual/cognitive and social/emotional needs and to limit adjacent advertising 
-The FCC initially declined to regulate cable television, but today the FCC defines both cable and DBS services as multi channel video programming distributors
Key Terms:
Zapple Rule- A political broadcasting rule that allows a candidates supporters equal opportunity to use broadcast stations if the candidates opponents supporters use the station Important Cases:
Turner Broadcasting System Inc. V. Federal Communications Commission
the first of two United States Supreme Court cases dealing with the must-carry rules imposed on cable television companies. Federal legislation requires cable television companies to devote a portion of their channels to local programming.
Red Lion Broadcasting Co. Inc. v. Federal Communications Commission
Supreme Court case that upheld the equal time provisions of the Fairness Doctrine, ruling that it was "the right of the public to receive suitable access to social, political, aesthetic, moral, and other ideas and experiences".
Relevant Doctrine:

N/A

Current Issues:
In the book, there is a real world case that discusses the importance of broadcasting advertisement in the political elections. During this whole chapter i realized how important media broadcasting laws is to politics, whereas prior to this class i never really realized any implications or importance regarding broadcasting regulations. The case in the book remarked that had Clinton gotten a headstart on broadcasting ads for her campaign, she would have had a stronger chance of beating Trump. Its a good thing that broadcasting laws allow for the public to access ads and campaigns, therefore allowing them their own personal voice
Questions:

Reading Summary Chapter 6 #6

Topic Overview:
-The US Constitution, State, and federal laws and courts decisions offer some limited privacy protection
-Not all states allow false light suits; most that do require a plaintiff to prove publicity, identification, the published material was false or created a false impression, the statements or pictures put the plaintiff in a false light that would be highly offensive to a reasonable person, and the fdefendant knew the material was false or recklessly disregarded its falsity
-Courts recognize most libel defenses as defenses in false light cases, including conditional privelage, fair reporting, and truth
-A successful appropriation plaintiff must prove his or her name, picture, likeness, voice, or identity was used for commercial or trade purposes without his or her permission.
-See below for further explanation of Topic Overview in Relevant Doctrines
- Intrusion occurs if a person intentionally interferes with anothers solitude or private concerns through physical or technological means
-Generally, people on public property have no reasonable expectation of privacy, but particularly aggressive news gathering even on public property can be considered intrusion
-Journalists may use visible equipment to photograph or record on public property
A private facts plaintiff must show the widely disseminated facts were private, dealt with intimate or highly personal matters and were not of legitimate public concern
-The topic of a news story, rather than the individual people discussed in the story, determines whether the story is of public significance
Key Terms:
intrusion upon seclusion- Physically or technologically distrubing anothers reasonable expectation of privacy
Important Cases:
Cox Broadcasting Corp. v Cohn
A case involving freedom of the press publishing public information. The Court held that both a Georgia Statute prohibiting the release of a rape victim's name and its common-law privacy action counterpart were unconstitutional.
Riley v California
A case in which the Court unanimously held that the warrant less search and seizure of digital contents of a cell phone during an arrest is unconstitutional.
Relevant Doctrine:

Plaintiff’s Case for Intrusion & Defenses

Plaintiffs case:

1) A reasonable expectation of privacy

2) Intentional intrusion of privacy

3) The intrusion would be highly offensive to a reasonable person

Defenses:

Consent- A person cannot claim a reasonable expectation of privacy if he or she gave consent for someone to be on his or her property

Plaintiff’s Case for Appropriation/ Right of Publicity & Defenses

The appropriation tort may be divided into two torts:

1) Commercialization: Applying to someone who wants to remain private and unknown except to family and friends. Using this persons name, picture, likeness, or voice for advertising or other commercial purposes without permission is commercialization. It is invading this persons privacy, causing emotional distress

2) Right of Publicity: Applying to someone who wants to be known far and wide, to be a celebrity- a musician, athlete, movie start, or television personality. Using the persons name, picture, likeness, voice or identity- or a look-alike or sound-alike- for advertising or other commercial purposes without permission invades this persons right of publicity. It diminishes the persons economic value.

Plaintiffs Case:

1) Using a persons name, picture, likeness, voice, or identity

2) For advertising or other commercial uses

3) Without permission

Defenses:

Newsworthiness- The most common defense; If the content is not on the commercial/trade-use side of the bright line, it will be found newsworthy

Public Domain- Names and associated information may be widely available to the public and therefore cannot be protected by right of publicity

First Amendment- The artistic relevance test; a test to determine whether the use of a celebrity's name, picture, likeness, voice, or identity is relevant to a disputed works artistic purpose. It is used in cases regarding the infringement of a celebrity's right of publicity

the trans-formative test; a test to determine whether a creator has transformed a persons name, picture, likeness, voice, or identity for artistic purposes. If so, the person cannot win a right of publicity suit against the creator.

Predominant use test; In a right of publicity lawsuit, a test to determine whether the defendant used the plaintiffs name or picture more for commercial purposes or protected expression.

Ads for the Media- mass media may run advertisements for themselves without consent when using the names and likenesses of public figures if those figures were part of their original content.

Consent- The best appropriation defense; may be explicit, or implied, minors/those not mentally or emotionally capable cannot give consent, and consent is limited to the agreements terms.

Incidental Use- A court could rule that a persons name or likeness was used so briefly that the purpose was not to make a profit or gain commercial benefit

Current Issues:
Based on the Doxxing case in the book, as well as the rest of the material in this chapter, an issue that I believe is relevant to this topic is data security and breaching. Today we hear jokes about how we will talk about how much we need a new backpack, and then the next day we will get ads all over our social media for buying a new backpack. It is hard to tell just how much of our private information is truly private, which makes me decidedly more considerate and aware of websites that claim to protect your privacy versus those that have a weak privacy policy. It seems like anything can be hacked today, and it is important to recognize when your information is safe, and, if it is compromised, what steps you can take legally.
Questions:

Reading Summary Chapter 5 #5

Topic Overview:
Libel: Defenses and Privileges
-Those sued for libel have may different defense options, as outlined in the relevant doctrines
-Journalists are able to report on certain events without fear of libel as long as their reporting is fair and accurate
- Expressing an opinion is regarded as a First Amendment right
-However, for material to qualify as protected opinion, it must satisfy the Ollman test, as outlined below
-Section 230 of the Communications Decency Act offers immunity to websites and internet service providers in libel claims, although the protection is not absolute
-Some libel defenses allow for republication, including neutral reportage and wire service defense
-Sometimes false, defamatory material is published about someone whose reputation cannot be lowered beyond its current level
Key Terms:
Retraction Statutes- In Libel law, state laws that limit the damages a plaintiff may receive if the defendant had issued a retraction of the material at issue.

Important Cases:
Ollman v Evans
Ollman was offered a job at University of Maryland. Rowland Evans and Robert Novak wrote a column in the newspaper entitled the "Marxist professor's intentions". Ollman claimed the column lead to his eventual withdrawal of the job offer, so he sued Evans for $6 million. Justice Kenneth Starr read the majority ruling favoring Evans, and created the Ollman test. The Ollman test has four parts that looks at 1.Verifiability 2.Common Meaning 3.Journalistic Context 4.Social Context
Milkovich v Lorain Journal Co.
A case that rejected the argument that a separate opinion privilege existed against libel. the Supreme Court ruled that opinions can be defamatory and that no broad constitutional shield for the expression of defamatory opinions is appropriate. It was the first time the Court addressed whether libel laws were applicable to expressions of opinion.

Relevant Doctrine:

Libel Defenses:

Truth-

A libel defendant may be able to demonstrate that there is no liability for publishing the statement at issue if it is 1. Not Defamatory, 2. It was not published or the plaintiff was not identified, or 3. does not meet the elements of a libel case

Anti-SLAPP-

A strategic lawsuit against public participation is a lawsuit whose purpose is to harass critics into silence, often to suppress those critics first amendment rights. Anti-SLAPP laws are meant to provide a remedy to SLAPP suits. Anti-SLAPP laws are intended to prevent people from using courts, and potential threats of a lawsuit, to intimidate people who are exercising their First Amendment rights.

Fair Report Privilege-

1. Information must be obtained from a record or proceeding recognized as "official"

2. The News Report must fairly and accurately reflect what is in the public record or what was said during the official proceeding

3. The source of the statement should be clearly noted in the news report

4. Not all States recognize the fair report privilege

Neutral Reportage-

The first amendment is a defense in a libel case if the following apply:

-the story is newsworthy and related to public controversy

-the accusation is made by a responsible person or group

-the charge is about a public official, public figure or public organization

-the story is accurate, containing denials or other views

-the reporting is natural

Wire Service-

The wire service defense may be applied as long as the following are present:

1. The defendant received material containing the defamatory statements from a reputable news-gathering agency

2. The defendant did not know the story was false

3. Nothing on the face of the story reasonably could have alerted the defendant that it may have been incorrect

4. The original wire service story was republished without substantial change

False Fact/Opinion-

1. Do the words have a commonly accepted meaning. Yes? FF. No? Opinion.

2. Can the Statement be proven to be true or false? Yes? More likely fact than opinion.

3. In what specific context do the words appear? Opinion Column? Opinion. A Block of news? FF.

4. In what broader context do the words appear? Is this a place where expression of opinions is common?

Ollman Test for Opinion:

1. Verifiability

2. Common Meaning

3. Journalistic Context

4. Social Context

Current Issues:
I connect this weeks material with some of the hate speech conversations we are having in class, and in the issues happening in the real world. Often times the sort of things we talk about online are taken as False Fact when they are simply opinion, and that is why I enjoyed learning about the Ollman Test. Next time I read something online that I think may be "fake news", or just seems a little bit off, I can apply this test to understand the content better. Furthermore, I would understand why some people are sued for defamation, and lose, because it is an opinion.
Questions: