Friday, April 22, 2005
The Florida Supreme Court has ruled in favor of Time-Warner in a question of commercial misappropriation under a Florida Statute (section 540.08). Plaintiffs had brought suit alleging that the film The Perfect Storm, based on the book by Sebastian Junger, asking for "recompense". They also sued for common law false light invasion of privacy. The District Court granted the defendants' motion for summary judgment on all claims. On appeal, the Eleventh Circuit certified the question under review to the Florida Supreme Court.
The Florida court restated the question as follows: "DOES THE PHRASE `FOR PURPOSES OF TRADE OR FOR ANY COMMERCIAL OR ADVERTISING PURPOSE' IN SECTION 540.08(1), FLORIDA STATUTES, INCLUDE PUBLICATIONS WHICH DO NOT DIRECTLY PROMOTE A PRODUCT OR SERVICE?" It considered a prior case, Loft v. Fuller (Fla. 4th DCA 1981), in which a Florida court first construed the meaning of the statute, and which continues to be the interpretation applied. "In our view, section 540.08, by prohibiting the use of one's name or likeness for trade, commercial or advertising purposes, is designed to prevent the unauthorized use of a name to directly promote the product or service of the publisher. Thus, the publication is harmful not simply because it is included in a publication that is sold for a profit, but rather because of the way it associates the individual's name or his personality with something else. Such is not the case here."
The Court concluded by finding in favor of the appellees. Read the opinion here. Read the amicus brief filed by Entertainment, Arts and Sports Law Section of the Florida Bar here. Jordan Tabach-Bank has published a case note in the Loyola of Los Angeles Entertainment Law Review on the proceeding: read Missing the Right of Publicity Boat here.
Wednesday, April 20, 2005
The DC Circuit has denied per curiam journalists Judith Miller and Matthew Cooper's request for a re-hearing en banc. The judges found the reporters' arguments completely unpersuasive. Judge Tatel filed a separate statement opining in part, "To avoid incarceration, they need not persuade the district judge that any accusation against them is false; they need only abandon their unlawful resistence (sic) and testify before the grand jury." Read the order here.
The Baton Rouge Advocate reports today that a Louisiana trial court judge has refused to order release of the 911 tapes made when Secretary of State Fox McKeithen fell at his home February 17. Judge Janice Clark indicated that because the tapes dealt with Secretary McKeithen's private health information she was disinclined to make them public. She cited McKeithen's privacy rights (including Section 5 of the Louisiana Constitution) in support of her decision. She gave the media five days to appeal her ruling.
Tuesday, April 19, 2005
The South Carolina Supreme Court has ruled that a 911 tape documenting a store owner's call for assistance is subject to the South Carolina Freedom of Information Act (S. C. Code Ann. Secs. 30-4-10 through 30-4-165 (1991 & Supp. 2004)). The Evening Post Publishing Company, publishing as the Post and Courier, had requested release of the tape, but the City of North Charleston, citing concerns over an upcoming trial of four men charged with attacking the man fatally shot in the ensuing incident, had refused to release the material. The newspaper lost at the trial and appellate levels and appealed to the Supreme Court.
On appeal, the Supreme Court noted that the Court of Appeals erred when it held that "harm is irrefutably presumed when the subject of the FOIA request will be evidence in a prospective criminal trial. We reject this categorical rule in favor of the usual case-by-case approach. The City was required to prove particular harm." Noting that "[t]he City argue[d] that pre-trial release of the tape would have led to substantial pre-trial publicity, which likely would have tained the entire jury pool, causing the venue of the trial to be changed", the Supreme Court still found that this particular harm was not the harm "that section 30-4-40(a)(3)(B) is intened to prevent. Rather, it is intended to prevent harms such as those caused by release of a crime suspect's name before arrest, the location of an upcoming sting operation, and other sensitive law-enforcement information. We do not close the door to pre-trial publicity ever factoring into a decision whether this exemption applies. We hold only that the financial burden of a potential change in venue did not justify withholding the 911 tape."
Noted the court, "[t]he City was not entitled to a presumption that it would be harmed by disclosure of the 911 tape's contents. The City was required to prove that it would suffer particular harm...The City's non-disclosure therefore violated FOIA."
Read the decision here.
The California Court of Appeals (Third Appellate District) has reversed the trial court, denying the request of the Los Angeles Times to compel the California Commission on Peace Officer Standards and Training (POST) to release certain information about its personnel under the California Public Records Act (Gov. Code section 6250 et seq.). POST had argued that the data was exempt because it was information ordinarily contained in confidential personnel files and was part of the officers' "employment history" as that term is understood within the meaning of section 832.8 subdivision (a) of the Penal Code. The appellate court agreed, saying, "As we will explain, all of the information sought by The Times was obtained by POST from peace officer personnel records within the meaning of Penal Code sections 832.7 and 832.8. Thus, the data is exempt from disclosure under section 6254, subdivision (k). " The Times had argued, however, that such information was information not expressly listed in Penal Code 832.8 as "components of a peace officer's personnel file". Therefore "they do not constitute personnel records within the meaning of Penal Code section 832.7 and...are not privileged under the CPRA." Read the entire opinion here.