August 18, 2006
Former College DJ's Defamation Action Against College, Employee May Proceed
Jason Antebi attended Occidental College from 2000 to 2004, and while there worked at the college radio station where he had a "shock jock" program. He also served on the college's student council. According to the ruling filed August 15 by the California Court of Appeal, Second District, some students disliked him and "[t]hree of them published statements that he was a racist and an anti-Semitic, and that he sexually harassed women. He reported the acts of these three students to Frank Ayala, the dean of students, and Sandra Cooper, the Occidental general counsel. Ayala and Cooper dismissed his complaint because the actions by the other students did not constitute harassment or defamation. They told him to `fight [his] own battles.'"
Accordingly, Antebi began to use his own radio show to do so. In March of 2004, "he made insulting comments attacking satirical characters based on these students and others...Within two weeks, the three students filed separate sexual harassment complaints against him based on his on-the-air statements. By then, Ayala had removed Antebi from the show."
The college began an investigation of Antebi's remarks and behavior, including allegations that "Antebi had threatened physical violence and retribution in e-mails to the gay community, and that he had defaced brochures with terms derogatory toward women. On March 22, 2004, as Cooper stood in an office at Occidental, she yelled into a public hallway at Antebi that he was a "racist." "sexist," "misogynist," "anti-Semite," "homophobe," "unethical" and "immoral" "trash." Numerous persons heard the comments."
In April the campus' Title IX officer submitted a report on the incidents. She "concluded that Antebi's March 11 program violated Occidental's policy against hostile environment and sexual and gender harassment. She recommended that Antebi apologize to the conmplainants, or to the Occidental community, and suggested that he seek counseling." Ayala agreed and told Antebi to comply or face "alternative discplinary action." Antebi refused and appealed. He lost the appeal. Antebi appealed further. The appellate court notes that "[t]here is not information in the record about the outcome of this appeal."
In March 2005, Antebi sued in superior court. The trial "sustained the demurrer [of Occidental College, the Board of Trustees, Ayala, the Title IX officer, and other employees] without leave to amend because Antebi had not exhausted his internal remedies and, even if he had done so, his exclusive remedy was by administrative mandamus." Antebi appealed on grounds of "(1)defamation; (2)violation of Civil Code section 51 and 52.1; (3) invasion of privacy; (4) intentional infliction of emotional distress; (5) negligence; (6) breach of fiduciary duties; and (7) declaratory relief under California's Leonard law (Ed. Code, [sec] 94367 et seq.).".
Reviewing de novo, the appellate court ultimately agreed with the trial court that Antebi had not exhausted his administrative remedies. However, it distinguished the defamation claim. "Although the statements were made during the period of the discplinary investigation, they were not a part of the administrative procedure. As we explain, Antebi has pleaded a cause of action for defamation, but not for intentional or negligent infliction of emotional distress. In Antebi's first amended complaint, he alleged that...Cooper yelled...at Mr. Antebi.....These words were published to numerous persons.....If the statement is unambiguous, a pleadings needs only an allegation that the statement was made in the presence of third persons. Antebi's allegation meets this test. Cooper's alleged statement was unambiguously defamatory and was made in the presence of other people in a public hallway. Respondents content that Antebi, as a public figures, must make a showing of malice by Cooper.....Assuming that Antebi is at least a limited purpose public figure...respondents are incorrect in their claim that Antebi failed to plead malice. He did so in his first amended complaint, which state that the defamatory statement was `motivated by factors which were beyond [the individual defendant's] purview as representatives [sic] of the College, including but not limited to personal dislike of [Antebi] and ill will towards [Antebi].'"
The case is Antebi v. Occidental College, B 186951 (Cal. C. A., 2d Dist.)(2006).
Read the entire ruling here.
August 17, 2006
California Student Press Freedom Bill Awaits Governor's Signature
California's bill 2581, nicknamed the "Hosty Bill" after Hosty v. Carter, 412 F.3d 731 (2005), the case decided by the Seventh Circuit, awaits a signature from Governor Arnold Schwartznegger. If he signs it, it would be the first state statute to protect the student press from censorship by their parent institutions. Here is the text of the bill.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 66301 of the Education Code is amended to read:
66301. (a) Neither the Regents of the University of California,
the Trustees of the California State University, the governing board
of any community college district, nor any administrator of any
campus of those institutions, shall make or enforce any rule
subjecting any student to disciplinary sanction solely on the basis
of conduct that is speech or other communication that, when engaged
in outside a campus of those institutions, is protected from
governmental restriction by the First Amendment to the United States
Constitution or Section 2 of Article 1 of the California
(b) Any student enrolled in an institution, as specified in
subdivision (a), that has made or enforced any rule in violation of
subdivision (a) may commence a civil action to obtain appropriate
injunctive and declaratory relief as determined by the court. Upon a
motion, a court may award attorney's fees to a prevailing plaintiff
in a civil action pursuant to this section.
(c) Nothing in this section shall be construed to authorize any
prior restraint of student speech or the student press.
(d) Nothing in this section prohibits the imposition of discipline
for harassment, threats, or intimidation, unless constitutionally
(e) Nothing in this section prohibits an institution from adopting
rules and regulations that are designed to prevent hate violence, as
defined in subdivision (a) of Section 4 of Chapter 1363 of the
Statutes of 1992, from being directed at students in a manner that
denies them their full participation in the educational process, if
the rules and regulations conform to standards established by the
First Amendment to the United States Constitution and Section 2 of
Article 1 of the California Constitution for citizens generally.
Here is a link to the enrolled bill.
Press Complaints Commission Cites Sunday Times for Breach in Interviewing Minor Without Parental Consent
The Press Complaints Commission has cited the Sunday Times for a breach of clause 6 of the Press Code dealing with children. Keith Cousins told the PCC that the Times had interviewed his fourteen year old son about the violent death of a schoolmate out of Cousins' presence in violation of the Code. The PCC found the complaint had merit. Read more here in the Media Guardian. Read the PCC's ruling here.
Daily Mail Threatened With Lawsuit For Reprinting Pix of Harry, Will, Friend
The Daily Mail is facing a lawsuit over its republication of those infamous photos of Princes William and Harry with a young woman, now identified as Natalie Pinkham, that originally appeared in the Sun over the weekend. Pinkham's attorneys sent the Mail a letter advising them that publication of the pictures violated her copyright, and that they were three years old, not a few weeks old as the Sun claimed. The Sun has since apologized for publishing the photos without Pinkham's consent. Read more in a Media Guardian article here.
August 16, 2006
Media Diversity and the First Amendment
Adam Candeub, Michigan State University College of Law, has published "The First Amendment and Measuring Media Diversity: Constitutional Principles and Regulatory Challenges" in volume 33 of the Northern Kentucky Law Review and as MSU Legal Studies Research Paper 03-26. Here is the abstract.
The Federal Communications Commission (FCC) limits the number of media outlets one entity can control in either national or local media markets and has restricted one entity from owning several outlets in different types of media. The FCC has justified its regulations as necessary to promote diversity of viewpoint. While the Supreme Court for decades has upheld these restrictions against First Amendment challenge, recent cases have been less receptive, using stricter scrutiny or demanding more empirical support.
The problems the FCC's regulations face in court, however, stem as well from the FCC's inability to rely on meaningful metrics for its putative regulatory goal, viewpoint diversity. Rather than attempt to quantify or identify the number of viewpoints and ideas in a given media market, the FCC asserts that diversity of ownership is a proxy for diversity of viewpoint. The FCC, therefore, counts heads to determine if there is enough diversity - a meaningless inquiry when not tethered to a measurement of diversity of media content.
This article proposes empirical and normative approaches to strengthen media ownership regulation. Empirically, the FCC could tackle the difficult question of relating viewpoint diversity in media content to market structure, a task its rulemaking has largely avoided. Normatively, in a de facto shift of the burden of persuasion, the FCC could argue from ethical/political grounds for decentralized ownership and maximize it until economic data clearly point to economic inefficiencies. In this way, a normative preference for decentralized ownership would guide regulatory action, and the FCC's line-drawing would concern economic efficiency - a more easily defined term than the elusive diversity concept.
Download the entire article from SSRN here.
August 15, 2006
Eleventh Circuit Rules Bookseller Did Not Violate Model's Right of Publicity By Displaying Book Jacket On Which She Appears
Model Thais Cardoso Almeida sued Amazon.com, the online bookseller, for displaying a book cover on which she appeared "in furtherance of its sale of the book Anjos Proibidos." Under relevant Florida statutes and the common law she alleged numerous wrongs including civil theft, invasion of privacy and misappropriation. The district court "granted summary judgment in favor of Amazon as to all of Almeida's claims. The district court held that Almeida's right of publicity claim under [sec] 540.08 and common law is preempted by the Communications Decency Act of 1996 ("CDA"), 47 U. S. C. [sec] 230 (2000), and is otherwise unavailable under Florida's statutory first-sale doctrine. As to Almeida civil theft claim, the district court held that Almeida failed to establish Amazon's intent to misappropriate Almeida's image." The appellate court affirmed, although it noted, "[W]ith respect to Almeida's right of publicity claim, we do so on different grounds."
The case here involves a book which was seized by the Brazilian authorities as a work of child pornography in 1991. "Two hundred copies of the book were sold before the authorities in Sao Paulo seized the remaining copies. Cabral [the photographer] and the book's publisher, Itamarati Grafica, were prosecuted for producing a work of child pornography, and both were acquitted." Note that Cabral is identified in the case as a fashion photographer, and the photographs are identified as artistic. Almeida's mother gave permission for her to be photographed and for her photograph to be included. However, Almeida now contends that she herself never gave permission and that she never received "just compensation for the use of her image."
"In 2000, Ophelia Editions published a second edition of Anjos Proibidos, which is the same in all respects [as the 1991 edition] except that Almeida's picture is now on the book's cover....The second edition was offered for sale on Amazon's website. Generally, Amazon is recognized as a leading internet retailer with a particular focus on online book sales....It is customary business practice for Amazon to provide a product detail page that displays the cover of each book offered for sale....In 2002, Almeida discovered that her picture was being displayed on Amazon.com websites....Amazon's product detail page displayed the second edition cover photograph...and a quote attributed to a ten-year-old Almeida: "I really liked Fabio. He's super-cool. I never felt any shame in making the photos."
"On March 6, 2003, Almeida' attorney sent a letter to Amazon requesting statutory damages...for its unauthorized use of her image. On March 11, 2003 Amazon responded...saying that it would voluntarily remove the listing...from its websites. The listing...was in fact removed promptly....Moreover, there is no indication that Amazon had knowledge or should have had knowledge that the book cover displayed an image that the author and publisher were not authorized to use. On July 7, 2003, Almeida' attorney sent a civil theft demand letter to Amazon...to which Amazon apparently did not respond.
"On November 14, 2003, Almeida filed suit....On January 2, 2004, Amazon invoked diversity jurisdicition...On July 30, 2004 the district court granted Amazon's motion for summary judgment.
"First, we address the district court's conclusion that the CDA preempts the subject matter of Almeida's right of publicity claim....Whether the CDA immunizes an interactive service provider from a state law right of publicity claim is an issue of first impression for this Court. Few federal courts have considered the effect of [sec] 230(e)(2) on the CDA's grant of immunity, although it is clear that "any law pertaining to intellectual property" at least refers to the three traditional forms of intellectual property: copyright, patent, and trademark....Thus, federal district courts have held that [sec] 230(e)(2)unambiguously precludes applying the CDA to immunize interactive service providers from trademark claims.... Almeida contends that the CDA does not preempt section 540.08 because it is a quintessential right of publicity claim, and the right of publicity is a widely recognized intellectual property right....
"Further, Almeida argues that [sec] 230(e)(2)extends to all intellectual property rights, even non-traditional state-law intellectual property rights.... Indeed, courts have held that intellectual property is not a static concept for purposes of the CDA....Almeida contends that extending the meaning of [sec] 230(e)(2) makes sense because the purpose served by publicity rights is similar to that of traditional intellectual property rights....Amazon responds that even if the right of publicity protects a type of intellectual property right, Congress did not intend for [sec] 230(e)(2) to apply to publicity rights. First, Amazon argues that Congress did not intend by the CDA to protect state-law claims....Second, Amazon argues that Almeida's right of publicity action is a tort-based suit, and Congress did not intend to limit the CDA's immunity with respect to tort-based suits. Amazon points to the Sixth Circuit's description of the CDA's purpose in Zeran,
Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. The imposition of tort liability on service providers for the communications of others represented, for Congress, simply another form of intrusive government regulation of speech. Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.
"Thus, while there appears to be no dispute that the right of publicity is a type of intellectual property right, Almeida argues that it is not clear from the statute that "any law pertaining to intellectual property" includes claims based upon state intellectual property rights. Moreover, neither party points to any legislative history indicating Congress' intent as to the effect of [sec] 230(e(2)....
"While we agree with Almeida that the district court should have addressed [sec] 230(e)(2)before invoking the CDA's grant of immunity, we believe that regardless of the answer to this question, the district court did not need to address the difficult issues of application of the CDA under the facts of this case. In Gucci, the court described the initial [sec] 230(e)(2) issue as, "whether Plaintiff's complaint would withstand a motion to dismiss even in the absence of [sec] 230." ... In this case, we ask whether an internet retailer, such as Amazon, could be held liable under Florida's right of publicity statute for displaying a book's cover image in furtherance of the book's sale. As we explain below, Almeida's right of publicity claim based on [Florida Statutes sec.]540.08 would not withstand a motion to dismiss under the law. Therefore, it was unnecessary for the district court to determine whether the CDA preempts Almeida's state law right of publicity claim, and we do not reach any of Almeida's challenges to the district court's application of the CDA here."
The case is Almeida v. Amazon.com, 19 Fla. L. Weekly Fed. C 810. Read the entire opinion here.
The 90s rock band Supernova, one of whose members is now a lawyer himself, is suing CBS and producer Mark Burnett over the new reality show "Rock Star: Supernova" which it claims infringes on its trademark. Settlement talks broke down earlier this year. The show, which features drummer Tommy Lee, bassist Jason Newsted and guitarist Gilby Clarke, seeks a vocalist; fifteen would-be stars will audition for the role of lead singer of the band, which may need a new name if Supernova prevails. The plaintiffs are seeking a preliminary injunction. Read more here.
August 14, 2006
Woody Allen Wins Legal Fees From Former Producer
A New York judge has awarded filmmaker Woody Allen nearly $100,000 in legal fees in a dispute with his longtime producer Jean Doumanian. Allen sued Doumanian in 2001 for twelve million dollars over several films, a suit which the parties settled. Read more here.
New Media in Australia
Anthony Lilley writes about new media in Australia for the Media Guardian here.
North Carolina Court Quashes Subpoena; Upholds Journalist's Claim of Privilege
A North Carolina court has upheld a journalist's claim to a qualified privilege under the state's shield law, and has found that the state has failed to make a "showing sufficient to overcome" the newspaper and the journalist's "qualified constitutional privilege because it has failed to demonstrate that information sought from them cannot be obtained from other available sources." The case is State v. Spivey.