February 24, 2006
Anita Ramasastry on the Netflix Class Action Lawsuit
Read Anita Ramasastry's commentary on the practice of "throttling" and the class action lawsuit against Netflix here.
New York Trial Court Holds In Favor of Photographer, Gallery, in Privacy Case
Judge Judith J. Gische has ruled that photographer Philip-Lorca DiCorcia and the Pace Gallery did not infringe the rights of Erno Nussenzweig when DiCorcia took Nussenzweig's photograph, displayed it and sold it without Nussenzweig's consent. Nussenzweig filed suit under New York Civil Rights Laws §§ 50 and 51 against both DiCorcia and the gallery alleging that his privacy rights had been violated and that his image was being used for commercial purposes. An excerpt from the judge's ruling follows.
"Plaintiff denies that the photograph is art. He argues that defendants' intended purpose was to sell the photograph and reproductions thereof. Plaintiff claims the sale and/or intended sale of the photograph constitutes a commercial use that is actionable under the privacy laws. He points to the actual sales made to support his argument and also to the fact that the exhibition was in a venue operating for profit (e.g. an art gallery) and not a museum. Plaintiff further claims that no discovery has taken place in this case and that he needs to find out exactly the extent to which defendants are pursuing a commercial use of his likeness. Plaintiff urges that privacy cases require a balancing of competing constitutional interests, and that this can only be accomplished after trial. Plaintiff argues that freedom of expression is not an absolute guaranty, but requires a trier of fact to weigh plaintiff's constitutional rights to privacy and his right to practice his religion against defendants competing interests. The Court of Appeals has repeatedly held that the New York statutory right of privacy restricts the use of one's likeliness against use for advertising and trade only and nothing more. It is a strictly construed statute enacted with sensitivity to the potentially competing values of privacy protection versus free speech....In recent years, some New York courts have addressed the issue whether an artistic use of an image is a use exempted from action under New York States Privacy Laws....They have consistently found "art" to be constitutionally protected free speech, that is so exempt. This court agrees.Even while recognizing art as exempted from the reach of New York's Privacy laws, the problem of sorting out what may or may not legally be "art" remains a difficult one. Some states for example, limit art to transformative and not duplicative likenesses.... Other states have limited exempted use to original works of fine art, but not to distribution of reproductions....New York has been fairly liberal in its protection of what constitutes art. ...[T]he court recognized that art can be sold, at least in limited editions, and still retain its artistic character. This analysis recognizes that first amendment protection of art is not limited to only starving artists. The analysis in Hoepker is consistent with the primary purpose/ incidental purpose doctrines, that have developed in connection with the newsworthy exemptions to privacy protections. A profit motive in itself does not necessarily compel a conclusion that art has been used for trade purposes.... In their moving papers defendants have prima facie shown that the photograph is "art". This is not a subjective determination, and cannot be based upon the personal preferences of either party or the court. Defendant DiCorcia has demonstrated his general reputation as a photographic artist in the international artistic community. With respect to the HEADS project, DiCorcia has described the creative process he used to shoot, edit and finally select the photographs, ultimately used. The photographs were not simply held for sale in the Pace gallery, but they were exhibited and reviewed by the relevant artistic community. None of the HEADS photographs were used to advertise anything other than the HEADS collection. The catalogue portfolio was used to advertise the exhibition, which is a permitted use under Civil Rights Laws §§ 50, 51.....Plaintiff does not raise any additional facts from which a conclusion could be drawn that the photograph was used for trade. There is no dispute that an extremely limited number of the photographs were sold for profit. There is also no dispute that Pace is an art gallery, not a museum, with a commercial objective of financial profitability. These facts in themselves, however, do not otherwise convert art into something used in trade. They do not raise a sufficient factual basis to challenge defendants prima facie showing that the photograph is art....Clearly, plaintiff finds the use of the photograph bearing his likeness deeply and spiritually offensive. The sincerity of his beliefs is not questioned by defendants or this court. While sensitive to plaintiff's distress, it is not redressable in the courts of civil law. In this regard, the courts have uniformly upheld Constitutional 1st Amendment protections, even in the face of a deeply offensive use of someone's likeness....The court, therefore, finds that plaintiff has failed to state a cause of action under New York Civil Rights Laws §§ 50 and 51. Summary judgment is granted on such basis and the motion to strike the affirmative defense is denied."
The case is 2006 NY Slip Op 50171(U). Read more here.
February 23, 2006
Netflix Makes Changes to Class Action Settlement
The online DVD rental service Netflix has changed the terms of a class action settlement to make certain that consumers will not be charged automatically once a free 30 day trial period expires. The company had previously told Judge Thomas Mellon Jr. that it was considering the change but had not decided to make it final until Wednesday. Under an older version of the settlement, consumers had to "opt out" of the agreement after the initial one-month period. Read more here.
Frey Book Deal Off
The two book deal between Riverhead Books, a Penguin imprint, and James Frey, whose memoir "A Million Little Pieces" has been under attack for months, is apparently off. Frey's spokesperson Lisa Kussell said yesterday that Frey, whose book is still selling briskly on the paperback bestseller list, won't be writing new titles for Riverhead. Warner Brothers had also been considering making a film out of "A Million Little Pieces" but seems now to be rethinking that option. Read more here.
Prince of Wales' Diary Released to Press
In the course of a second day's hearings over the leak of some material from the Prince of Wales' personal journal, the court has ordered the full account of his trip to Hong Kong in 1997 to be released to the press. The Prince's lawyers had attempted not only to prevent further release but to protect his copyright in the journal, and they were requesting summary judgment in the matter. Some excerpts from his diaries, recording his thoughts on the handover of Hong Kong to the People's Republic of China and his observations on the PRC's leaders, had been leaked to the Mail on Sunday last November. Read more here.
February 22, 2006
David Irving Says He Will Appeal Jail Term
Historian David Irving, given a three year term by an Austrian court after he pled guilty to violating a law that makes Holocaust denial a crime, says he plans to appeal the sentence. Read more here. Prosecutors also indicated they planned to appeal the sentence in order to try to have it increased, claiming that Irving's statement that he had changed his views and now believes that Nazi Germany killed "millions of Jews" was simply an attempt to escape prison time. Read more here.
ASA Tells Advertiser Commercial Goes Too Far
The Advertising Standards Authority has upheld a complaint concerning a movie ad for First Drinks Brands' Disaronno. "The commercial showed an attractive young woman ordering a "Disaronno on the rocks" from a barman; as she drank the drink a voiceover stated "Disaronno's warm and sensual taste makes you wish it would never end". The woman then put her empty glass on the bar; as the barman went to take the glass away the woman placed her hand on his arm to stop him. She took an ice cube out of the glass and placed it in her mouth seductively. Text and a voiceover stated "DISARONNO. PASS THE PLEASURE AROUND"; the closing shot showed the woman with a group of friends all repeating the gesture with the ice cube and laughing. The complainant objected that the ad was irresponsible because it linked sexual pleasure with alcohol consumption."
The relevant section of the Code is 56.9: Alcoholic Drinks--"Marketing communications must neither link alcohol with seduction, sexual activity or sexual success nor imply that alcohol can enhance attractiveness, masculinity or femininity."
"The ASA noted the CAP Copy Advice Team had advised FDB that the scene with the woman and the ice cube was likely to breach the Code. We considered that the image of the woman touching the barman's arm and placing the ice cube to her mouth conveyed seduction and strong sexual overtones. We concluded that the commercial linked Disaronno with seduction and was therefore in breach of the Code. We told FDB to adopt an approach, in future, which did not link their products with seduction. The commercial breached CAP Code clause 56.9 (Alcohol)."
Read the entire ruling here.
February 21, 2006
Supreme Court Denies Cert in Hosty Case
New York Times--U. S. Agencies Reclassifying Thousands of Documents
The New York Times has spotlighted a program, put in place in 1999 by the Central Intelligence Agency and other, unnamed, agencies, to reclassify previously released documents. The program came to light when historian Matthew Aid noticed that documents he had previously copied at the National Archives were no longer available. Read more here.
Some Proposed Digitization Guidelines
Emily Hudson and Andrew Kenyon, both of the University of Melbourne Law School, have published "Copyright and Cultural Institution: Short Guidelines for Digitisation" as the University of Melbourne Legal Studies Research Paper No. 141. Here is the abstract.
Digital technologies are leading to fundamental changes in the ways that copyright works are created, accessed and distributed. These changes are significant for cultural institutions' missions of access, preservation, research and education. Digital technologies also raise many administrative issues, including in relation to copyright. These short guidelines aim to assist understanding and compliance with copyright law within the sector, and supplement the authors' full Guidelines for Digitisation.
Download the full paper from SSRN here.
Moral Rights and Copyright
Susan Liemer, Southern Illinois University School of Law, has published "How We Lost Our Moral Rights and the Door Closed on Non-Economic Values in Copyright" in the John Marshall Review of Intellectual Property Law. Here is the abstract.
When Congress passed the Visual Artists Rights Act (“VARA”) in 1990, it introduced into our federal law concepts that had been shut out of Anglo-American intellectual property law for over 200 years. VARA gives visual artists the right of attribution, i.e., the right to have their work properly attributed to them, and the right of integrity, i.e., the right to not have their work altered or destroyed without their permission. While others have studied the history of Anglo-American copyright from the advent of the printing press, they make few references to the type of rights granted by VARA. To fill that gap, this article retraces the history of Anglo-American intellectual property law, analyzing how VARA rights fit into it. In particular, while analyzing the key Eighteenth Century English statutes and cases, this article pinpoints the moment in the evolution of Anglo-American law when the English judges effectively lopped off the branch of intellectual property law that soon after bloomed in France into the droit moral or “moral rights.” The timing of this legal development (and concurrent political developments) ensured that the intellectual property laws of the new United States would contain the English emphasis on economic protection and ignore the protection for the creative process that developed soon after in France. Understanding the twists and turns of this history may help us be more vigilant to protect moral rights development as our intellectual property law evolves to once again accommodate new technologies.
Download the entire paper from SSRN here.
February 20, 2006
Danish Paper Issues Apology For Publishing Cartoons
The Danish paper Jyllands-Posten which originally published 12 cartoons deemed to be offensive throughout the Muslim world has published an apology. Read more here.
More Commentary on the Danish Cartoons
Bernard Freamon, guest columnist for JURIST and a law professor at Seton Hall University Law School, writes about the Danish cartoon controversy here.
David Irving Pleads Guilty
BBC News is reporting that historian David Irving has pled guilty to charges that he denied the Holocaust. He told the court that he made an error when he made a statement in a 1989 speech that there were no gas chambers at Auschwitz. He faced charges under an Austrian law that makes such statements criminal. The court has sentenced him to three years in jail.