Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, November 21, 2017

Kirley on Whether Digital Speech Can Loosen the Gordian Knot of Reputation Law @kirleez

Elizabeth A. Kirley, Deakin University School of Law, has published Can Digital Speech Loosen the Gordian Knot of Reputation Law? at 32 Santa Clara High Tech. L.J. 171 (2016). Here is the abstract.

This paper likens the current state of reputation law to a Gordian knot, entangled in complexities and calling for novel thinking to make it relevant to our public and private lives. Its central thesis is that digital speech is ontologically different from offline speech and so calls for a more informed response to the harms it can inflict in order to determine whether legal or extra-legal mechanisms are most restorative. In spite of a wealth of international norms that address the value of personal reputation, they have had minimal influences on regional and domestic laws of the European Union and the United States, reflecting the deeply rooted cultural differences on each side of the Atlantic that shape laws of privacy and free speech. In conclusion, implications for future methods of addressing online reputational harm outside of traditional legal systems are discussed.

Download the article from SSRN at the link.

November 21, 2017 | Permalink

Monday, November 20, 2017

Abramson on Full Court Press: Drawing in Media Defenses in Libel and Privacy Cases @UTAustin

Jeffrey Abramson, University of Texas, Austin, is publishing Full Court Press: Drawing in Media Defenses in Libel and Privacy Cases, in the Oregon Law Review. Here is the abstract.

Recent jury verdicts against Rolling Stone Magazine and Gawker Media raise fundamental issues in defamation and privacy lawsuits, including who is a public figure, what counts as newsworthiness, and whether truth is always a defense under the First Amendment. Using those verdicts as a starting point, I reexamine the democratic arguments the Supreme Court relied on to protect free speech and the press in New York Times v. Sullivan. I conclude that subsequent cases overextended the New York Times rule in ways that weakened its democratic foundation. I suggest three reforms. Regarding the public figure doctrine, courts should enforce the oft-quoted, but frequently ignored, requirement that private individuals morph into public figures only to the extent that they voluntarily thrust themselves into a public controversy. In regard to privacy torts, truth should not be an absolute defense, no matter how uncomfortable such a conclusion is to one reading of the First Amendment. Judges and juries will have to continue to struggle over norms of newsworthiness when truth and privacy collide. Finally, media attention to the private lives of public officials, however justified on occasion, has become so routine as to defeat what New York Times v. Sullivan promised—a press focused on the investigation and criticism of official acts.
Download the article from SSRN at the link.

November 20, 2017 | Permalink

Friday, November 17, 2017

Ginsburg and Budiardjo on Liability for Providing Hyperlinks to Copyright-Infringing Content: International and Comparative Law Perspectives @ColumbiaLaw

Jane C. Ginsburg and Luke Budiardjo, both of Columbia Law School, have published Liability for Providing Hyperlinks to Copyright-Infringing Content: International and Comparative Law Perspectives as Columbia Public Law Research Paper 14-563. Here is the abstract.

Hyperlinking, at once an essential means of navigating the Internet, but also a frequent means to enable infringement of copyright, challenges courts to articulate the legal norms that underpin domestic and international copyright law, in order to ensure effective enforcement of exclusive rights on the one hand, while preserving open communication on the Internet on the other. Several recent cases, primarily in the European Union, demonstrate the difficulties of enforcing the right of communication to the public (or, in US copyright parlance, the right of public performance by transmission) against those who provide hyperlinks that effectively deliver infringing content to Internet users. This article will first address the international norms that domestic laws of states member to the multilateral copyright agreements must implement. It next will explore how two of the most significant regional or national copyright regimes, the EU and the US, have coped with the question of linking, and then will consider the relationship of the emerging approaches to copyright infringement with national and regional laws instituting limited immunity for copyright infringements committed by internet service providers. We will conclude with an assessment of the extent to which the outcomes under US and EU regimes, despite their apparently different approaches, in fact diverge.

Download the article from SSRN at the link.

November 17, 2017 | Permalink

Laidlaw on Mapping the Path of a Speech Complaint on Social Networks @EmilyLaidlaw @UCalgaryLaw @LawDeanHolloway

Emily Laidlaw, University of Calgary, Faculty of Law, is publishing What Is a Joke? Mapping the Path of a Speech Complaint on Social Networks in The Legal Challenges of Social Media (David Mangan and Lorna E. Gillies, eds., Elgar, 2017) (Elgar Law, Technology, and Society). Here is the abstract.

When an individual goes online and makes a comment that causes offense it can be framed in a variety of ways. It can be framed as hate speech, defamatory speech, an invasion of privacy, terrorism supporting speech, or bullying, obscene, or offensive speech. The common defence of such posts is that it was just a silly joke. The question for speech regulation is how to treat such purported jokes. Are these jokes simply pushing boundaries; distasteful, but the price we pay for our freedom of expression? The banter and jokes that take place on social media are often spontaneous and imperfectly executed. The problem is that some of these jokes can cause serious harm, particularly to traditionally marginalised groups which tend to be the targets. The response of Western countries is varied, with the United Kingdom, for example, struggling with over-criminalization of such comments, while that is not the case in Canada or the United States of America. Most complaints about content fall to be privately regulated through the hosts. Through the lens of what is a joke, this chapter maps the path of a complaint about speech on social networks, focusing on the ways that the law, industry measures and voluntary policies by the hosts interwork and intersect. This mapping will then be used to highlight the difficulty in drawing a line between offensive speech requiring regulation and jokes.

Download the essay from SSRN at the link.

November 17, 2017 | Permalink

Strasser on Tinker Remorse: On Threats, Boobies, Bullying, and Parodies @CapitalLaw

Mark Strasser, Capital University Law School, has published Tinker Remorse: On Threats, Boobies, Bullying, and Parodies at 15 First Amendment Law Review 1 (2016). Here is the abstract.

While students in school have free speech rights, those rights are not absolute. In a series of cases, the Court has modified the students’ rights jurisprudence in ways that do not make it clearer but, instead, more obscure and more difficult to apply. The circuit courts have tried to take account of the Court’s changing views and have come up with very different and sometimes incompatible ways to apply the doctrine. Until the United States Supreme Court offers a coherent analysis of the existing jurisprudence that offers guidance on several issues on which there is a split, lower courts will continue to offer increasingly incompatible interpretations of the jurisprudence — they will issue decisions that are increasingly at odds with each other and which, considered together, will increasingly undermine good public policy and the perception that the law treats individuals fairly and consistently.

The full text is not available from SSRN.

November 17, 2017 | Permalink

Thursday, November 16, 2017

An Introduction To Arkansas's 2016 Publicity Rights Act

Professor Uché Ewelukwa Ofodile, University of Arkansas School of Lawon Arkansas's 2016 Publicity Rights Act (the Frank Broyles Act).

November 16, 2017 | Permalink

Pasquale on The Automated Public Sphere @FrankPasquale

Frank A. Pasquale, III, University of Maryland School of Law; Yale University Information Society Project, has published The Automated Public Sphere as University of Maryland Legal Studies Research Paper No. 2017-31. Here is the abstract.

The public sphere has experienced yet another structural transformation. Firms like Facebook and Google have largely automated the types of decisions made by managers at television networks, or editors at newspapers — but with much more powerful effects. Long critiqued in academic circles, the manifest inadequacy of this new media landscape is now itself a matter of public debate. The deficiencies of the automated public sphere are so manifest that consumer protection and media regulatory authorities must intervene. As they do so, they should carefully examine how emergent dynamics of communicative capitalism vitiate older societal protections. New methods of monitoring and regulation should be as technologically sophisticated and comprehensive as the automated public sphere they target. This article first describes the documented, negative effects of online propagandists’ interventions (and platforms’ neglect) in both electoral politics and the broader public sphere (Part I). It then proposes several legal and educational tactics to mitigate platforms’ power, or to encourage or require them to exercise it responsibly (Part II). The penultimate section (Part III) offers a concession to those suspicious of governmental intervention in the public sphere: some regimes are already too authoritarian or unreliable to be trusted with extensive powers of regulation over media (whether old or new media), or intermediaries. However, the inadvisability of extensive media regulation in disordered societies only makes this agenda more urgent in well-ordered societies, lest predictable pathologies of the automated public sphere degrade their processes of democratic will formation.

Download the article from SSRN at the link.

November 16, 2017 | Permalink

Friday, November 10, 2017

French Court Tosses Azerbaijani Defamation Suit Against French TV Network, Journalists

The Azerbaijani government attempted to bring a case of defamation against two French journalists and a French network in a French court, but the court dismissed the case, agreeing with the public prosecutor that freedom of the press was paramount in this instance. The government of Azerbaijani  had objected to coverage by France Télévisions, Elyse Lucet, and Laurent Richard of former French President Hollande's visit to that country. Ms. Lucet called the country a "dictatorship" and Mr. Richard called its President a "dictator." Azerbaijan says it plans an appeal of the ruling. More here from Radio France International.  here from Radio Free Europe.

In a statement, Reporters Without Borders said it was pleased that the French court has dismissed the case, stating, "“Any other decision would have opened a dangerous breach that would have allowed despots all over the world to come and persecute French journalists in France.”

November 10, 2017 | Permalink

Wednesday, November 8, 2017

Zansberg on Recent High-Profile Cases and the Need For Greater Procedural Protections for the Press @BallardSpahrLLP @SturmCOL

Steven D. Zansberg, Ballard, Spahr, LLP; University of Denver College of Law, has published Recent High-Profile Cases Highlight the Need For Greater Procedural Protections for Freedom Of the Press at 33 Comm. Law. 7 (Fall 2017). Here is the abstract.

Two recent high-profile First Amendment cases, Terry Bollea (a/k/a Hulk Hogan) v. Gawker Media and Beef Products, Inc. v. American Broadcasting Companies, Inc. (a/k/a the “Pink Slime” case) demonstrate the need for greater procedural protection for media defendants in civil litigation arising from their newsgathering and publishing activities. To provide the “breathing space” for the freedom of speech the Constitution demands, there must be an opportunity for interlocutory appeal of dispositive motions premised on First Amendment defenses. This article discusses four alternative approaches to establish such a procedural mechanism. The author also calls upon those in the legal academy to prepare more detailed and scholarly articles urging the judiciary to recognize this constitutionally-mandated remedy.

Download the article at the link.

November 8, 2017 | Permalink

Tuesday, November 7, 2017

American Chemical Society Wins Default Judgment In Copyright Lawsuit Against Sci-Hub

U. S. District Court Judge Leonie Brinkema has issued a default judgment against Sci-Hub, a website that advertises that it "provides free access to research articles and latest research information without any barrier to scientific community [sic]" after the American Chemical Society brought a lawsuit against the site, claiming that Sci-Hub infringed its rights repeatedly by uploading copyrighted materials. Judge Brinkema also issued an injunction and granting the ACS nearly $5 million in damages ($150,000 per violation). Here is a link to the ruling, uploaded by Steve M. Claugh.

More discussion from The Scientist, the American Chemical Society (Press Release), and Science. 

November 7, 2017 | Permalink

Day and Weatherby on Speech Narcissism

Terri Day, Barry University School of Law, and Danielle Weatherby, University of Arkansas School of Law; WHiteman, Osterman, & Hann, LLC, are publishing Speech Narcissism in the Florida Law Review. Here is the abstract.

From its embryonic stage during the civil rights era to its modern-day presence on college campuses, the political correctness movement has undergone an extreme metamorphosis. In the university setting, it was originally intended to welcome diverse views by encouraging minority students to feel part of the learning environment and to contribute to the “marketplace of ideas.” Recently, however, as students more frequently demand trigger warnings and safe spaces in response to speech that they deem personally offensive, the use of political correctness measures on college campuses has had the unintended consequence of chilling speech. Contrary to longstanding First Amendment principles, college campuses are becoming environments in which the most vulnerable among the student population can exercise a “heckler’s veto,” silencing speech that is subjectively offensive to the most sensitive students. During the 2016 presidential election, Trump supporters praised his unfiltered campaign rhetoric and divisive Tweets while others condemned them, criticizing his unscripted approach as offensive in the name of political correctness. The contrast between Trump supporters’ chants of “lock her up” at rallies and college students’ demands for safe spaces and trigger warnings is noteworthy; these diverse groups fall at the opposite ends of a speech tolerance spectrum. On the one end of the spectrum, political correctness is shunned; on the other end, it is demanded. In debunking the purported justifications for the use of extreme political correctness measures on college campuses, this Article adds to the ongoing discussion of the changing landscape of privately-imposed speech rules for public discourse and posits that both ends of the speech-tolerance spectrum reflect a form of speech narcissism. The new normal in speech rights has abandoned the central meaning of the First Amendment – the freedom to engage in “uninhibited, robust, and wide-open” debate on matters of public concern. The “my way or the highway” approach to public discourse is the antithesis of the free speech principles thought essential to secure liberty and democracy. In response to this trend, state legislatures are passing Freedom of Speech statutes that safeguard speech in the classroom and on the quad. While these laws are a positive step toward countering the negative effects of political correctness, this Article suggests that speech offensiveness is a matter of ethics and education that cannot be remedied solely by law. “True grit” and compassion training are necessary antidotes to the thin-skulled, speech adverse students who demonstrate zero tolerance for any expression that is personally offensive.

Download the article from SSRN at the link.

November 7, 2017 | Permalink

Tuesday, October 31, 2017

Hoppner, Kretschner, and Xalabardner on the Proposed EU Right for Press Publishers @HausfeldGlobal @ipx_xala

Thomas Hoppner, Technical University Wildau; Hausfeld RA LLP, Martin Kreschner, University of Glasgow, and Raquel Xalabardner, Universitat Oberta de Catalunya, have published CREATe Public Lectures on the Proposed EU Right for Press Publishers at 39 European Intellectual Property Review 601 (2017). Here is the abstract.

This article comprises edited transcripts from two public lectures on the topic of the proposed new EU right for press publishers, organised by CREATe, the RCUK Copyright Centre based at the University of Glasgow. The lectures were given by Professor Raquel Xalabarder (speaking against) and Professor Thomas Höppner (speaking in favour) in November 2016 and February 2017. The transcripts were edited and updated in June 2017, and in this published format are preceded by an introduction from Professor Martin Kretschmer, Director of the CREATe Centre.

Download the article from SSRN at the link.

October 31, 2017 | Permalink

Thursday, October 26, 2017

Barnes and Hevron on Judicialization and the Risk of Negative Episodic Media Coverage

Jeb Barnes, University of Southern California Department of Political Science, and Parker R. Hevron, Texas Womans University, have published Framed? Judicialization and the Risk of Negative Episodic Media Coverage. Here is the abstract.

Activists on the left and the right have increasingly turned to the courts to make policy, raising questions about the potential risks of judicialization. One possibility is that litigation is more prone to negative episodic media coverage than alternative modes of policymaking. Using across and within-policy area comparisons of stories about the Federal Black Lung Program, collective asbestos litigation strategies, and individual asbestos tort suits, we find that coverage becomes steadily more episodic and critical as it focuses on policy regimes that feature increasing amounts of adversarial legalism. Moreover, even the broadest coverage of asbestos litigation fails to explain why victims of asbestos turned to the courts, how powerful interests constrained their policy options, or how judges urged Congress to act. This limited and relatively critical anecdotal reporting implies that litigation may engender less favorable media coverage than its alternatives and that activists should weigh this risk when deciding to litigate.

Download the article from SSRN at the link.

October 26, 2017 | Permalink

Wednesday, October 25, 2017

Gregory P. Magarian, Managed Speech: The Roberts Court's First Amendment (OUP, 2017) @WashULaw

Gregory P. Magarian, Washington University, St. Louis, has published Managed Speech: The Roberts Court's First Amendment (Oxford University Press). Here is a description of the book's contents from the publisher's website.

Our constitutional freedom to speak out against government and corporate power is always fragile, but today it faces unprecedented hazards. In Managed Speech: The Roberts Court's First Amendment, leading First Amendment scholar, Gregory Magarian, explores and critiques how the present U.S. Supreme Court, led by Chief Justice John Roberts, has reshaped and degraded the law of expressive freedom. This timely book shows how the Roberts Court's free speecOur constitutional freedom to speak out against government and corporate power is always fragile, but today it faces unprecedented hazards. In Managed Speech: The Roberts Courts First Amendment, leading First Amendment scholar, Gregory Magarian, explores and critiques how the present U.S. Supreme Court, led by Chief Justice John Roberts, has reshaped and degraded the law of expressive freedom. This timely book shows how the Roberts Court's free speech decisions embody a version of expressive freedom that Professor Magarian calls "managed speech". Managed speech empowers stable, responsible institutions, both government and private, to manage public discussion; disfavors First Amendment claims from social and political outsiders; and, above all, promotes social and political stability. Professor Magarian examines all of the more than forty free speech decisions the Supreme Court handed down between Chief Justice Roberts' ascent in 2005 and Justice Antonin Scalia's death in 2016. Those decisions, taken together, aggressively advance stability at a steep cost to robust public debate. Professor Magarian proposes a theoretical alternative to managed speech, one that would aim to increase the range of ideas and voices in public discussion: "dynamic diversity." A First Amendment doctrine based on dynamic diversity would prioritize political dissent and the rights of journalists, allow for reasonable regulations of money in politics, and work to broaden opportunities for speakers to be heard. This book offers a fresh, critical perspective on the crucial question of what the First Amendment should mean and do.h decisions embody a version of expressive freedom that Professor Magarian calls Professor Magarian proposes a theoretical alternative to managed speech, one that would aim to increase the range of ideas and voices in public discussion:

October 25, 2017 | Permalink

Newly Published: Privacy In a Digital Age: Perspectives From Two Continents (CAP, 2017) @CAPBooks

Newly published: Privacy in a Digital Age: Perspectives From Two Continents (Russell L. Weaver, Steven I. Friedland, William Gilles, and Irene Bouhadana, eds., Carolina Academic Press, 2017) (Carolina Academic Press Global Papers Series; IV).

In recent decades, clashes between technology and privacy have become commonplace. Threats to privacy have come from a variety of different sources, including governmental sources and private sources. This book examines the conflict between privacy and electronics, but does so from a comparative perspective. Included are various perspectives from Europe, including papers from France, England, and Norway, dealing with issues ranging from data protection to the Google Spain decision (which articulated the "right to be forgotten").

The Global Papers Series involves publications of papers by nationally and internationally prominent legal scholars on a variety of important legal topics, including administrative law, freedom of expression, defamation and criminal law.  The books in this series present the work of scholars from different nations who bring diverse perspectives to the issues under discussion.






October 25, 2017 | Permalink

Thursday, October 19, 2017

Russo and Risch on Virtual Copyright @ProfRisch

Jack Russo, ComputerLaw Group, LLP, and Michael Risch, Villanova University School of Law, are publishing Virtual Copyright in The Law of Virtual and Augmented Reality (Woody Barfield and Marc Blitz eds., 2018). Here is the abstract.

This book chapter explores the development of virtual reality technology from its rudimentary roots toward its realistic depiction of the world. It then traces the history of copyright protection for computer software user interfaces (a law that only predates virtual reality by a few years), highlighting competing approaches toward protection and infringement. While the focus is on virtual reality, this chapter contains an exhaustive examination of the state of "look and feel" protection for software interfaces. The chapter then considers how these competing approaches -- each of which is still holds some sway in the courts -- will apply to virtual reality objects, application, worlds, and interfaces. We posit that as VR becomes more realistic, courts will find their way to allow more reuse. We do not expect to see traditional characters and animation treated any differently in virtual reality. Mickey Mouse is still Mickey Mouse, and Pikachu lives in trading cards, cartoons, augmented reality, and virtual reality. It is whether and how realistic depiction, gesture control, modularization and sharing fit within copyright's limiting doctrines that will create important and difficult questions for future developers, judges, juries, and appellate courts.

Download the essay from SSRN at the link.

October 19, 2017 | Permalink

Wednesday, October 18, 2017

Post on The Classic First Amendment Tradition Under Stress: Freedom of Speech and the University @YaleLawSch

Robert Post, Yale Law School, has published The Classic First Amendment Tradition Under Stress: Freedom of Speech and the University. Here is the abstract.

This forthcoming chapter in a book to be edited by Lee Bollinger and Geoffrey Stone scrutinizes the frequently-heard claim that universities are suppressing the “First Amendment” rights of students, faculty, and invited speakers. The chapter argues that this claim rests on a fundamental misconception about the nature of First Amendment rights, which apply to public discourse and are designed to establish preconditions for democratic self-determination. Speech at universities, by contrast, must be regulated to attain the ends of education. Debates about the proper regulation of campus speech are thus ultimately debates about the nature of education, not about First Amendment rights. The overblown and misleading constitutional rhetoric of these debates is symptomatic of a larger debasement of our understanding of the nature of free speech protections, a debasement that could seriously undermine the strength of Free Speech principles when we actually need to call upon them to do serious work to protect the integrity of our political system.

Download the chapter from SSRN at the link.

October 18, 2017 | Permalink

Tsesis on Social Media Accountability for Terrorist Propaganda @LoyolaLaw

Alexander Tsesis, Loyola University Chicago School of Law, is publishing Social Media Accountability for Terrorist Propaganda in volume 86 of the Fordham Law Review (2017). Here is the abstract.

Terrorist organizations have found social media websites to be invaluable for disseminating ideology, recruiting terrorists, and planning operations. National and international leaders have repeatedly pointed out the dangers terrorists pose to ordinary people and state institutions. In the United States, the federal Communications Decency Act’s Section 230 provides social networking websites with immunity against civil law suits. Litigants have therefore been unsuccessful in obtaining redress against internet companies who host or disseminate third-party terrorist content. This Article demonstrates that Section 230 does not bar private parties from recovery if they can prove that a social media company had received about specific webpages, videos, posts, articles, IP addresses, or accounts of foreign terrorist organizations; the company’s failure to remove the material; a terrorist’s subsequent viewing of or interacting with the material on the website; and that terrorist’s acting upon the propaganda to harm the plaintiff. This Article argues that irrespective of civil immunity, the First Amendment does not limit Congress’s authority to impose criminal liability on those content intermediaries who have been notified that their websites are hosting third-party foreign terrorist incitement, recruitment, or instruction. Neither the First Amendment nor the Communications Decency Act prevents this form of federal criminal prosecution. A social media company can be prosecuted for material support of terrorism if it is knowingly providing a platform to organizations or individuals who advocate the commission of terrorist acts. Mechanisms will also need to be created that can enable administrators to take emergency measures, while simultaneously preserving the due process rights of internet intermediaries to challenge orders to immediately block, temporarily remove, or permanently destroy data.

Download the article from SSRN at the link.

October 18, 2017 | Permalink

Walker on Investigative Journalism and Counter Terrorism Laws

Clive Walker, University of Leeds, Centre for Criminal Justice Studies, has published Investigative Journalism and Counter Terrorism Laws at 31 Notre Dame Journal of Law, Ethics, and Public Policy 129 (2017). Here is the abstract.

Since terrorism is now perceived as a primary and pervasive threat to state security, many states have adopted broad legal definitions of ‘terrorism’ and, upon that basis, have enacted correspondingly expansive policing powers and criminal offences. As a dramatic instance of how these approaches, which affect major Western jurisdictions such as the US and UK, this paper will focus on the paradigm case of David Miranda. In August 2013, Miranda was transporting computer materials (including files from security agencies) supplied by Edward Snowden, a former contractor with the US National Security Agency, to journalist Glenn Greenwald to assist ongoing disclosures in The Guardian and other publications. The materials were seized during an examination and detention of Miranda while he was transiting through Heathrow Airport. The journalists viewed their mission as one of ethical disclosure in the public interest of a vast web of governmental surveillance programmes. However, the UK Security Service (MI5) contended that Miranda was concerned in ‘terrorism’ (as defined in the UK Terrorism Act 2000, section 1) because his mission sought to influence the government by promoting a political or ideological cause. The allegation was that disclosure of the data to a hostile state (Russia) or to terrorists might imperil the identities of secret agents or the methods used for electronic surveillance of terrorists. Thus, the material fell into the realms of terrorism. On these grounds, Miranda was held under special detention powers relating to counter-terrorism at borders, and the materials were seized. Similar arguments were then used to persuade the editor of The Guardian to destroy other materials held in the newspaper offices. In a subsequent court review, Miranda v Secretary of State for the Home Department, the meaning of who is a ‘terrorist’ and whether the journalistic activity being pursued by Miranda, Greenwald and others should be excluded from that depiction was explored. This paper seeks to reflect upon the complex linkages between journalistic activities and the label of ‘terrorism’ which is becoming a primary threat to investigative journalism in the contemporary world. It will require reflection upon the conceptual nature of terrorism and journalism in a setting of ethics, public policy and law.

Download the article from SSRN at the link.

October 18, 2017 | Permalink

Tuesday, October 17, 2017

Madison and Lombardi on Blurred Justice: The "Blurred Lines" Case @ChanceyGardener

Allen D. Madison, University of South Dakota Law School, and Paul Lombardi, University of South Dakota School of Music, are publishing Blurred Justice in volume 38 of the Loyola of Los Angeles Entertainment Law Review (2018). Here is the abstract.

This paper discusses a current controversial copyright case involving inspiration. Marvin Gaye’s family, who owns the copyright to “Got to Give It Up,” claims that “Blurred Lines,” made famous by Robin Thicke, infringes on the family’s copyright. The Gaye family prevailed at trial. At summary judgment, the Federal District Court permitted the case to go to trial without determining whether there were elements to “Got to Give It Up” that were unprotected as unoriginal, commonplace musical ideas, or musical building blocks. Had the court made such a determination, the case should not have gone to trial. The summary judgment phase of litigation is supposed to weed out obviously unmeritorious cases such as this one. This article analyzes the two songs in detail from a music theory perspective and concludes that the similarities between the two songs were unprotected and that the protected elements were not similar. Accordingly, summary judgment should have been granted holding that there was no infringement. Further, the Gaye family should not have succeeded at trial. In our view, the summary judgment process failed, and we make some recommendations on how to improve the courts review at summary judgment for music copyright cases.

Download the article from SSRN at the link.

October 17, 2017 | Permalink