LAW - Political Speech chapter
Teacher: She's still not feeling well..
Coming tuesday:
CASE TO BRIEF: "Citizens United"
Expanding Corporate Rights to Speak
1978 - First National Bank of Boston v. Bellotti
Bank wanted to oppose state income tax. Bellotti (MASS Attorney general) said income tax not a direct impact on banking.
+ Supreme Court says citizens have a right to receive political speech by corporations.
+ Bank has right to express an opinion, public has right to hear it.
+ Cooperations cannot "plead the fifth"
1980 - Consolidated Edison Co. of NY, Inc. v. Public Service Commission of NY.
Laws restricting corporations must be content neutral. In other words, can't restrict just political speech.
Compelled Speech:
Pacific G and E v. Public Utilities Commission of CA -
1986 - Electrical company (Pacific Gas & Electric)
"they didn't even know what green meant..it was just a color"
Supreme Court 5-3 decision said that forcing a utility to carry unwanted consumer messages was unconstitutional.
Legal Restraints on Corporate Speech during elections
In Belotti the courts specifically said that corporations can speak about public issues - but that does NOT include participation in a political campaign.
1971 - Federal Election Campaign Act
Contributions - funds given to a candidate or campaign committee
Expenditures - funds spent independently of candidate on their behalf
Corporations are not permitted to make either contributions or expenditures for candidates running for FEDERAL office.
Profit Making Corporations:
Laws restricting speech must show
"compelling interest and narrowly tailored"
Prohibited Contributions and Expenditures:
gifts of money, advertising, securities, discounts, membership lists, use of facilities, broadcast time, and services to the candidates and their campaigns.
2006 - FEC (Federal Election Commission
-incidental use of business computers for voluntary internet political activities is ok. . .
2010 - Citizens United - FEC
cooperations can buy ads for political candidates.
PRESS EXEMPTION
To determine is press exemption applies:
- Is it a bonafide press entity. Is there editorial control.
- Is entity owned by political party, candidate, or political committee
-Is entity engaging in legitimate press function.
====
So on tuesday: Read the chapter
Thursday, October 25, 2012
Tuesday, October 23, 2012
Thursday, October 18, 2012
Class Canceled? Confusion
Note said canceled...but we were supposed to turn in our briefs upstairs..
Due to confusion, no one will be penalized. She won't count anyone absent and picked up the briefs later.
Due to confusion, no one will be penalized. She won't count anyone absent and picked up the briefs later.
Friday, October 12, 2012
Copyright: Licensing
Media Law
Copyright
Protection
Three parts to notice
- copyright or ©
- date
- full name of owner
© Copyright, 2012 Kyle Matthew Jones
To protect your copyright:
- Post the copyright notice
- send two copies with the proper forms and fee to US copyright office
- register within three months of publication
USING COPYRIGHTS
Licensing
- Blanket license - you pay a certain amount every year
- Performance license - make money using someone else's work (based on the contract)
- Master Use license
- Compulsory license - you keep track and pay royalties on it / a "pay as you play" license (i.e. Ringtones)
+ Moral Rights - international copyright law, the Burnn Convention
Ah ….Bobby…Bobby….
"He should be sitting in this class…"
INFRINGEMENT
Plaintiff must prove:
- Ownership of copyright
- violation of that ownership by defendant
- that defendant had access (the reason artists won't listen to others demos to keep them from saying you stop their sound/music)
- substantial similarity
"When they were writing the constitution…they weren't thinking about embedded video" - Dr. Mary N.
DAMAGES:
Types of infringement:
- Direct infringement
- Contribution Infringement
- Vicarious infringement
Damages Awards:
Statutory - must prove loss of income.
Punitive Damages - actual malice or intentional harm.
FAIR-USE
- The purpose and character of the use
- The nature of the copyrighted work
- The amount and substantiality of the portion
- The effect of the use on the potential market for the copyrighted work.
UNFAIR COMPETITION
Misappropriation - Using someone else's PRODUCT as your OWN
Trademarks - A word, name or symbol, used to identify a product. "Give me a Kleenex…oh would you like a Puffs instead"
Service marks - Associate a product with a specific service.
Registration - ® According to Lanham Trademark Act, this trademark is registered
™ / SM means Trademark/Servicemark is Pending.
"Finger-licking good" can be service marked
They have to be unique enough to be different
Registration must be renewed every ten years
Parody - just making fun of something
Satire - draw attention back to themselves, taking their work and turning it into something else
One Back-up copy for yourself is allowed
Amount and substantiality of the work
Weather you're taking the "meat" of it.
Inherently Distinctive Marks - to be registered a mark has to be distinctive
Infringement - infringement of trademark is thought to confuse the consumer
Dilution - Continued use of similar trademark will dilute the strength of Trademark
Abandonment - A trademark lasts as long as it is being used
Trademarks:
"If I asked you how many of you have tried coke, most of you would think of a soft drink…i sure hope."
** DUE THURSDAY (right after fall break) Read & Brief the Case she emailed us**
Tuesday, October 9, 2012
Copyright
Libel, Invasion of Privacy
Need to know the differences!
and test also covers copyright.
"In Libel law a private person has to prove what level of fault? Negligence..but if you want punitive damages (punishment) then you have to prove actual malice..even a private person)
Copyright
Part of the Constitution BEFORE the First Amendment was passed.
Article 1, Section 8
Intellectual property recognized by Constitution: Inventions, Writings
Copyrightable Works
"original works of authorship fixed in any tangible form of expression…from which they can be perceived, reproduced, or otherwise communicated."
Ideas cannot be copyrighted…has to be TANGIBLE!
allows creatives to maintain control of it.
Six Rights under Copyright Law
- right of reproduction of the work
- right of preparation of derivative works
- right of public distribution of the work
- right of public performance of the work
- right of public display of the work
- right of public digital performance of a sound recording
Materials that can be copyrighted include:
Literary or musical works
Dramatic works, including accompanying music
Pantomimes and choreographic works
pictorial, graphics and sculptural works
motion pictures
sound records
"There's only so many letters in the alphabet--like what? 24 or 26?"
in discussing copyrights and slogans
###
Materials that cannot be copyrighted included:
Facts:
News Events
Telephone books and databases
Collective works
Derivative Work
OWNERSHIP
- Author
- Joint ownership (split equally)
- work for hire (you sign off the rights and the company owns it)
- freelance (you record it and they buy it…I still own the footage)
- government ownership
- states have limited right to copyright documents
Terms of Protection
Works created BEFORE January 1, 1978
- protected by copyright for 95 years
Works created AFTER 1978
- protected for life of the author or creative plus 70
Joint Ownership
- protected for life of the last living creator plus 70 years
Works for hire
- protected for 95 years after publication
Business works
- protected for 120 years from creation or 95 years from date of publication
Thursday, October 4, 2012
Privacy, Ethics, Laws
Differences between libel and invasion of privacy << know them!!
Public records are not invasion of privacy, no matter how long ago the record was..recorded.
Retrospectives: if you're gonna dredge up old news..there better be a good public interest to justify it.
(under revealing personal private facts)
Offensive Material
* If it is determined private facts received publicity, a court then asks:
1. Is the material offensive to a reasonable person, not someone who is overly sensitive?
2. Is the published material of legitimate public concern?
What is a legitimate public concern?
a. How much public interest or importance is there in the material?
b. How deeply do these facts intrude into an individual’s privacy?
c. How public or private is the individual in the story?
Ethics and Privacy
Ethics Code of the Society for Professional Journalists (SPJ):
“Recognize that gathering and reporting information may cause harm and discomfort. Pursuit of the news is not a license for arrogance.”
Journalists should “show good taste,” and “avoid pandering to lurid curiosity.”
Recounting the Past
* Two kinds of lawsuits arise about the past:
1. A news story, book or TV documentary that simply recounts the past
2. “Where they are now” stories; pushes beyond history
Private Facts on the Internet
The disclosure of private facts on the Internet is treated by the courts in the same
way as publication in a newspaper
"I could just dream..I don't care if it was a beach or a mental institution!"
3. Intrusion
(placing yourself into someone else's business)
Taking pictures from street of man beating his wife..(so hypothetical)
-Trespass
-Eavesdropping to overhear a conversation
-Gathering personal information from an individual’s private records (a biggie is medical records)
-Using a telephoto lens
Child star, growing up and getting busted for crack & drugs:
"Is he intentionally back in the news? No, he's just an idiot"
No Privacy in Public
-There is no expectation of privacy in public
-Anything visible or audible by any person in the vicinity is public, not private
-No expectation of privacy in places where people gather
Hidden Recording Devices
Ethical guidelines for when to use hidden recording devices:
-Information is of profound importance
-All other alternatives exhausted
-Apply excellence needed to pursue the story fully
-Harm prevented outweighs harm caused by the deception
-Journalists involved have conducted a meaningful, collaborative and deliberative decision to justify deception
TN – One person must know about recording
Publication of Information Obtained Illegally
Journalists can use illegally gathered material given them
Journalists cannot use information they have obtained illegally
Intrusion and the Internet
No expectation of privacy when information voluntarily made accessible
4. False Light Privacy
Made public
About the plaintiff
Substantially false
A woman was walking out of a funhouse and a photographer took a picture.. it wasn't libel because that's what she looked like.. but it was offensive to a reasonable person & totally humiliated.
Illegal to publicize material that places an individual in a false light if:
1. offensive to a reasonable person (embarrassment is enough) and
2. The publisher of the material was at fault when the publication was made
In rules of journalism & photography:
"Yeah, I'd be careful doing any 'Hooker in High school' stories.."
Comparisons to libel
False light and Libel both require level of falsity
Libel must damage reputation
False light can merely cause embarrassment/humiliation
Distortion:
Most common false light claim against media.
information is omitted OR
information is used out of context
Fictionalization
The purposeful distortion of the truth for dramatic purposes
Minor Falsehoods
* Most false light cases result from:
Simple editing or writing errors, and/or
Misuse of photographs and video
Obvious falsehoods
Hard to win if comment is obviously false
The Fault Requirement
Plaintiffs required to prove actual malice in false light cases involving issues of public importance.
DEFENSES (used by the media):
First Amendment - right to publish information of public interest.
newsworthiness
consent – implied/explicit
(Truth is not always a defense in a false light case)
5. Emotional Distress and Personal Injury:
New area beyond defamation and invasion of privacy. Not tested.
courts have stated that plaintiffs can claim this:
. . .when another’s conduct is “so outrageous in character and extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”
Intentional Infliction of emotional distress. Can possibly prove intention harm.-conduct was intentional or reckless
-conduct was extreme and outrageous
-conduct caused the plaintiff emotional distress
-emotional distress was severe
Supreme Court requires for a claim of Intentional infliction of emotional distress:
1. that the information be stated as fact, not opinion
2. that it is a false statement of fact
3. that the person writing or making the statement knew it was false, or exhibited reckless disregard for the truth or falsity of the material.
In other words. . .now, even for Emotional distress must demonstrate actual malice.
Fictionalization
Time (Life Magazine) v. Hill
Absolute Privilege & Qualified Privilege
Absolute Privilege - the info was presented in a protected environment. "They heard me (falsely) accuse the defendant of being the murderer" You can reported because you were in the context of an official legal proceeding: during a case in a courtroom.
Qualified Privilege: Reporting on anything that happens in a legal proceeding. (but can't editorialize)
Neutral Reportage: a usually reliable source screws up.
Right of Reply:
what kind of access does a person have to replay to Oprah's negative comment about you.
Public records are not invasion of privacy, no matter how long ago the record was..recorded.
Retrospectives: if you're gonna dredge up old news..there better be a good public interest to justify it.
(under revealing personal private facts)
Offensive Material
* If it is determined private facts received publicity, a court then asks:
1. Is the material offensive to a reasonable person, not someone who is overly sensitive?
2. Is the published material of legitimate public concern?
What is a legitimate public concern?
a. How much public interest or importance is there in the material?
b. How deeply do these facts intrude into an individual’s privacy?
c. How public or private is the individual in the story?
Ethics and Privacy
Ethics Code of the Society for Professional Journalists (SPJ):
“Recognize that gathering and reporting information may cause harm and discomfort. Pursuit of the news is not a license for arrogance.”
Journalists should “show good taste,” and “avoid pandering to lurid curiosity.”
Recounting the Past
* Two kinds of lawsuits arise about the past:
1. A news story, book or TV documentary that simply recounts the past
2. “Where they are now” stories; pushes beyond history
Private Facts on the Internet
The disclosure of private facts on the Internet is treated by the courts in the same
way as publication in a newspaper
"I could just dream..I don't care if it was a beach or a mental institution!"
3. Intrusion
(placing yourself into someone else's business)
Taking pictures from street of man beating his wife..(so hypothetical)
-Trespass
-Eavesdropping to overhear a conversation
-Gathering personal information from an individual’s private records (a biggie is medical records)
-Using a telephoto lens
Child star, growing up and getting busted for crack & drugs:
"Is he intentionally back in the news? No, he's just an idiot"
No Privacy in Public
-There is no expectation of privacy in public
-Anything visible or audible by any person in the vicinity is public, not private
-No expectation of privacy in places where people gather
Hidden Recording Devices
Ethical guidelines for when to use hidden recording devices:
-Information is of profound importance
-All other alternatives exhausted
-Apply excellence needed to pursue the story fully
-Harm prevented outweighs harm caused by the deception
-Journalists involved have conducted a meaningful, collaborative and deliberative decision to justify deception
TN – One person must know about recording
Publication of Information Obtained Illegally
Journalists can use illegally gathered material given them
Journalists cannot use information they have obtained illegally
Intrusion and the Internet
No expectation of privacy when information voluntarily made accessible
4. False Light Privacy
Made public
About the plaintiff
Substantially false
A woman was walking out of a funhouse and a photographer took a picture.. it wasn't libel because that's what she looked like.. but it was offensive to a reasonable person & totally humiliated.
Illegal to publicize material that places an individual in a false light if:
1. offensive to a reasonable person (embarrassment is enough) and
2. The publisher of the material was at fault when the publication was made
In rules of journalism & photography:
"Yeah, I'd be careful doing any 'Hooker in High school' stories.."
Comparisons to libel
False light and Libel both require level of falsity
Libel must damage reputation
False light can merely cause embarrassment/humiliation
Distortion:
Most common false light claim against media.
information is omitted OR
information is used out of context
Fictionalization
The purposeful distortion of the truth for dramatic purposes
Minor Falsehoods
* Most false light cases result from:
Simple editing or writing errors, and/or
Misuse of photographs and video
Obvious falsehoods
Hard to win if comment is obviously false
The Fault Requirement
Plaintiffs required to prove actual malice in false light cases involving issues of public importance.
DEFENSES (used by the media):
First Amendment - right to publish information of public interest.
newsworthiness
consent – implied/explicit
(Truth is not always a defense in a false light case)
5. Emotional Distress and Personal Injury:
New area beyond defamation and invasion of privacy. Not tested.
courts have stated that plaintiffs can claim this:
. . .when another’s conduct is “so outrageous in character and extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”
Intentional Infliction of emotional distress. Can possibly prove intention harm.-conduct was intentional or reckless
-conduct was extreme and outrageous
-conduct caused the plaintiff emotional distress
-emotional distress was severe
Supreme Court requires for a claim of Intentional infliction of emotional distress:
1. that the information be stated as fact, not opinion
2. that it is a false statement of fact
3. that the person writing or making the statement knew it was false, or exhibited reckless disregard for the truth or falsity of the material.
In other words. . .now, even for Emotional distress must demonstrate actual malice.
Fictionalization
Time (Life Magazine) v. Hill
Absolute Privilege & Qualified Privilege
Absolute Privilege - the info was presented in a protected environment. "They heard me (falsely) accuse the defendant of being the murderer" You can reported because you were in the context of an official legal proceeding: during a case in a courtroom.
Qualified Privilege: Reporting on anything that happens in a legal proceeding. (but can't editorialize)
Neutral Reportage: a usually reliable source screws up.
Right of Reply:
what kind of access does a person have to replay to Oprah's negative comment about you.
Tuesday, October 2, 2012
Privacy
LAW
CLASS EXAMPLE:
"Oh it was full of snark"
INVASION OF PRIVACY
Libel - must be false/must damage reputation
Privacy – not necessarily false and can protect feelings
4 Categories of Invasion of Privacy
1. Appropriation/Commercialization
(stealing my face to promote their product)
2. Revealing Personal private facts
3. Intrusion
- trespassing, spying on somebody on the farm
4. False Light
- has to be primarily/substantially false, look like it's false, hold you up to some humiliation because of its interpretation
1. Appropriation/Commercialization
Using an individual’s name or likeness for commercial /trade purposes without consent
Two rights involved:
1. Right to Privacy –a personal right
2. Right of Publicity – a property right – protects economic value of name or likeness
"we can take our own pictures and make our own money"
Video/Photo issues: Individuals? not so much but Disneyland or Elvis
News and Information Exception
Individuals cannot sue for appropriation in a news story
Booth Rule
The use of a person’s name or likeness in an advertisement for a media product is usually not regarded as an appropriation if the name or likeness has been or will be part of the content.
"You can buy anything" Pay for the rights.
Consent as a Defense
Written consent is generally uncontestable
Oral consent does not offer the same protection; it can be easily contested
When Consent Won’t Work
1. Consent today may not be valid in the distant future
2. Some persons (minors, wards of the state) cannot give consent
3. Consent to use a photograph does not apply if image is altered or changed
Life After Death
The right to privacy is a personal right that dies with the individual
Several states have laws stating a right to publicity may live on after death
2. Revealing Personal Private Facts
-Truth is not a factor
damages are not lessened by retraction (can’t take back embarrassment)
"She gave me a D on that paper..i'm gonna print out these fliers that reveals that she has AIDS"
-Easier to prove embarrassment than actual damage to reputation
It is illegal to publicize private information if facts:
-Would be highly offensive to a reasonable person,
-Are private, and
-Not of legitimate public concern
It's not illegal to reveal a rape victim, but it is generally not shown/told.
Private facts –
not known to the public
not public record
not precious revealed by person
not taking place in public
not in view of public
Can report most anything that happens or is seen in public.
Publicity in privacy law differs from publication in libel law
Publicity—communication of information to a large number of people
Publication—the communication of information to a single third party
CLASS EXAMPLE:
"Oh it was full of snark"
INVASION OF PRIVACY
Libel - must be false/must damage reputation
Privacy – not necessarily false and can protect feelings
4 Categories of Invasion of Privacy
1. Appropriation/Commercialization
(stealing my face to promote their product)
2. Revealing Personal private facts
3. Intrusion
- trespassing, spying on somebody on the farm
4. False Light
- has to be primarily/substantially false, look like it's false, hold you up to some humiliation because of its interpretation
1. Appropriation/Commercialization
Using an individual’s name or likeness for commercial /trade purposes without consent
Two rights involved:
1. Right to Privacy –a personal right
2. Right of Publicity – a property right – protects economic value of name or likeness
"we can take our own pictures and make our own money"
Video/Photo issues: Individuals? not so much but Disneyland or Elvis
News and Information Exception
Individuals cannot sue for appropriation in a news story
Booth Rule
The use of a person’s name or likeness in an advertisement for a media product is usually not regarded as an appropriation if the name or likeness has been or will be part of the content.
"You can buy anything" Pay for the rights.
Consent as a Defense
Written consent is generally uncontestable
Oral consent does not offer the same protection; it can be easily contested
When Consent Won’t Work
1. Consent today may not be valid in the distant future
2. Some persons (minors, wards of the state) cannot give consent
3. Consent to use a photograph does not apply if image is altered or changed
Life After Death
The right to privacy is a personal right that dies with the individual
Several states have laws stating a right to publicity may live on after death
2. Revealing Personal Private Facts
-Truth is not a factor
damages are not lessened by retraction (can’t take back embarrassment)
"She gave me a D on that paper..i'm gonna print out these fliers that reveals that she has AIDS"
-Easier to prove embarrassment than actual damage to reputation
It is illegal to publicize private information if facts:
-Would be highly offensive to a reasonable person,
-Are private, and
-Not of legitimate public concern
It's not illegal to reveal a rape victim, but it is generally not shown/told.
Private facts –
not known to the public
not public record
not precious revealed by person
not taking place in public
not in view of public
Can report most anything that happens or is seen in public.
Publicity in privacy law differs from publication in libel law
Publicity—communication of information to a large number of people
Publication—the communication of information to a single third party
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