Media Law Prof Blog

British Call-In Shows Continue to Cause Controversy

The flap over those British call-in/quiz shows continues. Now they're facing the possibility that they might need to obtain licenses under the 2005 Gambling Act. Ofcom has already fined Channel Five a record three hundred thousand pounds over breaches of the broadcasting code during its popular quiz Brainteaser.

"Having considered the relevant facts as outlined above and the representations made by Channel 5 and taking account of the factors listed above, the Committee decided to impose a financial penalty on Channel 5 of £300,000 (payable to HM Paymaster General) which it considers to be a proportionate and appropriate penalty in all the circumstances of this case. In addition, the Committee has directed Channel 5 to broadcast a statement of Ofcom’s findings in a form determined by Ofcom on its service Five on two occasions, once at 12:30 (the time Brainteaser was transmitted) and once in peak-time."

Here's a link to the agency's decision.

News Anchor Mika Brzezinski Refuses to Read Lead Story on Paris Hilton

The other day MSNBC early morning anchor Mika Brzezinski refused to read the lead story handed her, which was about the release overnight of socialite and jailbird Paris Hilton, maintaining instead that other news, including Senator Richard Lugar's criticism of the President's Iraq war strategy, merited more attention. In response co-host Joe Scarborough mocked her over her stand. She ultimately shreded the pages. Read more in a Guardian story here. But the anti-Paris movement may be gaining steam: see a story here that US Weekly may have refused to run a story on her.

Jury Charged in Black Trial

Judge St. Eve has charged the jury in the Conrad Black trial and it has retired to consider its verdict. Read more here in a Guardian story.

Food Fight

Rebecca Charles, the chef at Pearl Oyster Bar in the West Village, has sued Ed McFarland of Ed's Lobster Bar in SoHo for appropriating her stuff--her menu, her decor, her table settings. She filed suit yesterday in federal district court against Mr. McFarland, apparently because although others have imitated her, he was once her sous-chef, and that pill is just too bitter to swallow. Mr. McFarland says the restaurants are similar, but not identical. The New York Times reports on the dispute here. One blogpost here.

Whether recipes themselves can be copyrighted is one that scholars have recently started to consider. Christopher J. Buccafusco, University of Chicago Law School, discusses the question in "On the Legal Consequences of Sauces: Should Thomas Keller's Recipes be Per Se Copyrightable?" Here is the abstract.

The restaurant industry now takes in over $500 billion a year, but recent courts have been skeptical of the notion that one of its most valuable assets, original recipes, are subject to copyright protection. With more litigation looming and the contours of the debate insufficiently mapped out, this article establishes the appropriate groundwork for analyzing the copyrightability of recipes. I show that, contrary to recent appellate court opinions, recipes meet the statutory requirements for copyrightability. I argue, by analogizing to musical compositions, that written recipes work to satisfy the fixation requirement of copyright law just as musical notation does for compositions. Accordingly, the “dish” is the final work of authorship, the recipe is the fixation medium, and the various cooking techniques - braising, grilling, sous vide - are the potentially patentable processes. In order to meet copyright law's requirement of originality, though, the work must be deemed expressive. To determine whether and how recipes are expressive, I interviewed some of America's best chefs, each of whom claimed to use recipes to express various ideas and emotions.

Since there are no doctrinal limitations to recipes' copyrightability, in Part II, I offer reasons for the late recognition as protectable works. First, I consider the marginalized status of the sense of taste in the history of Western aesthetic philosophy. For many philosophers, only objects that presented themselves to the eyes and ears, such as music, painting, and literature, could be truly beautiful. Partly out of the fear that fancy foods can lead to gluttony, Western, and more specifically Anglo-American writers have often tried to limit cuisine to its fundamentally nutritive components, further isolating it from the realm of creative expression. Furthermore, the producers of cuisine have been treated no better than their products. Throughout history cooking has been the province of lowly household servants and housewives, with only a select few chefs rising to the status of artisan. Chefs rose from the ranks of obscurity far more slowly than did writers, painters, and musicians. Finally, chefs have a long history of directly copying recipes and dishes from their predecessors, suggesting that the norms of Romantic original authorship formed much later in cuisine than in other arts.

In Part III, I return to the law to consider whether the copyright monopoly should be extended to culinary creations. Chefs are not likely to take serious advantage of copyrights, as the time and money necessary for suit would rarely be worth the benefit. The chefs I interviewed were uncomfortable with the idea of owning their recipes, and they all approved of others using their recipes, subject to certain limits. Increased innovation is also unlikely as a more robust intellectual property regime would likely inhibit chefs' willingness to experiment with other chefs' dishes. Furthermore, the public domain would not see any meaningful increase, because few chefs who currently keep their recipes secret will be persuaded to publish them to obtain the limited benefits of copyright. The article concludes by arguing that formal copyright protection is not necessary for culinary creation, because a vibrant system of social norms already exists to sanction plagiarism, encourage attribution, and reward innovation. Thus, although recipes meet the formal doctrinal requirements of copyright law, an extension of the monopoly is neither necessary nor appropriate at this time.

Download the entire paper from SSRN here. [Cross posted from the Law and Humanities blog.]

RIAA and RICO?

Here's FindLaw's Anita Ramasastry on why an Oregon woman, who may be justifiably angry at the RIAA for targeting her in an ultimately untenable illegal file sharing suit, probably can't prevail in a malicious prosecution, IIED, and invasion of privacy lawsuit, but is trying it anyway by alleging that the association is part of a larger criminal enterprise and is thus subject to the RICO statute.

Federal Judge: Press Can Cover Imams' Case Against Airline

U. S. District Judge Ann Montgomery has refused to limit media coverage of the upcoming lawsuit against U. S. Air by several imams whom the airline removed from a flight from Minneapolis to Phoenix, after other passengers observed what they thought was suspicious behavior. The plaintiffs' attorney objected to media coverage, saying he thought it has so far been slanted against his clients. Judge Montgomery responded by saying that the public has a First Amendment right to receive information about the case. Read more here. Here is the original complaint filed in U. S. District Court.

Fifth Circuit: Newspapers Have Standing To Challenge City Ordinance Regulating Street Vendors

The U. S. Court of Appeals for the Fifth Circuit has ruled that two newspapers, the Houston Chronicle and the Daily News, have standing to challenge a city's ordinance regulating street vendors, even though the city repealed the constitutionally impermissible restrictions of the ordinance after entry of the trial court's ruling. However, the appellate court ruled that "[b]ecause the remaining provision, §78-39, has never been applied to the newspapers, however, and, because its plain language is non-discriminatory and content-neutral, we reverse the district court's holding it unconstitutional, both facially and as applied. Pursuant to the newspapers’ cross-appeal, we reverse the district court's refusal to award attorney's fees to them, because they remain prevailing parties on their claim, pursuant to 42 U.S.C. §1983."

...

"The instant dispute post-dates a related Texas state-court action, in which the Houston Chronicle sued City officials for prosecuting its street vendors for violating Texas Transportation Code §552.007(a) (prohibiting street solicitations, except by charitable organizations). That state-court action ended in March 2004 with a consent judgment permanently enjoining the City from prosecuting Houston Chronicle vendors under this state law....The Ordinance is similar to the above Texas law....The Ordinance required, inter alia, any “solicitor, peddler, canvasser, or itinerant vendor”, prior to engaging in any “business and related activities”, to: register with the City; submit to a criminal background check; pay a $30 fee; and post a $1,000 bond. League City, Tex., Ordinances art. II, §§78-32 and 78-33 (2004). The Ordinance exempted “[m]inors conducting fundraising activities who represent a youth organization, including, but not limited to Boy Scouts, Girl Scouts, Little League groups, and school groups”....A year after the 2004 state-court consent judgment, and several months after §78-39 was added, the City, using a related Ordinance provision (§78-38), issued citations to two Houston Chronicle vendors selling newspapers at the intersection of State Highway FM 518 and Interstate 45, for “soliciting without a permit”. Id. at §78-38(12) (making it “unlawful for any peddler, solicitor, canvasser or itinerant vendor” to conduct business “on any public roadway, public roadway median, public sidewalk … or other public property within the city without written authorization from the city”). As a result, the Houston Chronicle and the Daily News filed this action in August 2005, pursuant to 42 U.S.C. § 1983, claiming the Ordinance violated the First and Fourteenth Amendments....That October, the district court permanently enjoined enforcement of the Ordinance, holding it unconstitutional, both facially and as applied to prohibit newspaper sales on public streets....The district court did not find, however, that the City ever prosecuted, or threatened to prosecute, the newspapers under §78-39. But implicit in its findings is the suggestion that the City will do so....In any event, the district court held: “Section 78-39 … cannot be justified as a valid time, place and manner restriction because the City de facto discriminates in enforcing it based on the content of the message being conveyed”...."

After finding that the newspapers had standing, the Court began an inquiry into whether they could demonstrate injury. "Toward this end, the newspapers rely on a 28 April 2005 letter from the City's attorney, which indicated the City would prosecute them under §78-39. The letter acknowledged possible constitutional problems with subjecting the newspapers to the Ordinance's later-repealed permitting requirements, pursuant to, e.g., §78-38, but stated:

It is our position that in all other respects the ordinance represents a reasonable exercise of the City's police power… . As the [City's Police] Chief made clear in his comments [at a meeting that April], [Houston Chronicle] salespeople are, in certain instances, setting up shop in the center of a painted, unimproved median on a busy farm-to-market road intersecting Interstate 45 South. Enforcement of the ordinance will minimize the possibility of serious bodily injury or death for these individuals. In the face of these known circumstances, I cannot imagine that either the [ Houston] Chronicle or Daily News would wish to be recognized for having advocated a repeal of these safety measures at the risk of their employees’ safety and well-being.

"Concerning the Houston Chronicle, the City issued two citations to its vendors at the above-referenced intersection, pursuant to the Ordinance's now-repealed permitting requirements in §78-38 and related sections. Although the above-quoted correspondence intimates the City would not further prosecute both newspapers under §78-38, it clearly indicated it will do so under §78-39. The Houston Chronicle has demonstrated sufficient injury to establish standing for the repealed provisions and, as discussed below, for §78-39. Regarding the Daily News, and contrary to the City's contentions, it has demonstrated it engages in sales in the City that would subject its vendors to prosecution under the Ordinance in general and §78-39 in particular. In addition to the evidence the district court found sufficient (which finding the City does not show was clearly erroneous), this court granted the Daily News’ 9 February 2006 motion to supplement the record on appeal, adding evidence that, following entry of the injunction, the Daily News began selling newspapers at the above-referenced intersection....Chilling a plaintiff's speech is a constitutional harm adequate to satisfy the injury-in-fact requirement....Although, unlike the Houston Chronicle, the Daily News has not been issued a citation under the Ordinance, it has shown a chilling of its First Amendment activities under the repealed Ordinance provisions. Both newspapers have shown such effect for §78-39, and both have shown imminent future prosecution if the City is not enjoined. Therefore, each newspaper has demonstrated specific injury beyond mere subjective chill....

"The City asserts: its repealing parts of the Ordinance renders the newspapers’ earlier challenge to those parts moot; and, as a result, the injunction should be vacated. The newspapers concede their challenge to the repealed provisions is obviously moot; but, they claim the City should not be permitted to evade the injunction by selectively repealing provisions. We reject the City's vacatur-due-to-mootness contention. It goes without saying that disputes concerning repealed legislation are generally moot...."

However in the case, the Court pointed out, the only part of the ordinance left unrepealed "was held unconstitutional by the district court. The City contends §78-39 is a constitutionally permissible, content-neutral time, place, and manner restriction, narrowly tailored to achieve a compelling governmental interest....Despite its ultimately holding §78-39 unconstitutional, the district court found §78-39 “has no content-based discriminatory intent”....Consistent with the above-quoted letter from the City attorney, the City relies on this finding to maintain its content-neutral purpose is one of public safety: to prohibit the dangerous activity of solicitors’ entering busy traffic intersections. Toward this end, the City demonstrated at trial that newspaper street-vendors in nearby cities had been seriously injured at intersections similar to FM 518/I-45. According to the City, §78-39 was deliberately drafted to restrict solicitations only at intersections controlled by traffic-signal lights in order to narrowly tailor the restriction, while leaving open adequate alternative channels for solicitation....Despite its above-quoted finding that §78-39 “has no content-based discriminatory intent”, the district court held the section “cannot be justified as a valid time, place and manner restriction because the City de facto discriminates in enforcing it based on the content of the message being conveyed”.... It further held §78-39 was not applied in a content-neutral manner because the City “allows charitable organizations to solicit donations for their causes at the intersection of FM 518 and Interstate 45 while prosecuting the newspapers’ vendors for engaging in constitutionally protected activity”....And it held §78-39 was neither narrowly tailored nor designed to serve a compelling government interest....

"Injunctive relief is reviewed for an abuse of discretion....In that regard, a district court abuses its discretion when it: “(1) relies on clearly erroneous factual findings when deciding to grant or deny the permanent injunction[,] (2) relies on erroneous conclusions of law when deciding to grant or deny the permanent injunction, or (3) misapplies the factual or legal conclusions when fashioning its injunctive relief”....The district court correctly stated the applicable law: streets are traditional public forums...the sale of newspapers is a First-Amendment-protected activity...therefore, in order to prohibit such activity in a quintessential public forum, a content-based regulation must be “necessary to serve a compelling state interest and … narrowly drawn to achieve that end”; and, when the regulation is content-neutral, it must also be “narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication”....

However, the appellate court concluded that the district court made an error when it concluded that the city "de facto discriminates in enforcing [§78-39] based on the content of the message being conveyed”. The city enforced a different provision which has since been repealed. The newspapers argued instead that "a Texas law, Texas Transportation Code § 552.0071, obligates the City to discriminate against them in applying §78-39. That law requires local governments to allow municipal employees, such as firefighters, “to stand in a roadway to solicit a charitable contribution”, so long as such solicitors comport with other local requirements, such as posting a bond or obtaining a permit. Tex. Transp. Code Ann. §552.0071 (Vernon 2005). The newspapers argued: this state law imports discrimination into §78-39 against non-municipal, non-charitable organizations; because the City would violate §552.0071 by applying §78-39 against charitable-municipal-employee street-solicitors, a mandatory exception to §78-39 is created by operation of law; and this contention is sufficient to uphold the district court's finding §78-39 “de facto discriminatory”. However, they apparently made this argument for the first time (if at all) in oral argument. Therefore the 5th Circuit reversed the district court's finding on this issue. Finally, the Court also reversed the denial of attorneys' fees to the newspapers, since they prevailed on all issues.

The case is Houston Chronicle Publishing v. League City, Texas, 35 Med. L. Rptr 1825 (U.S.C.A., 5th Circ. 2007).

More on Internet Silence

FindLaw's Cecily Mak writes on the scheduled day of Internet silence here.

Internet Protest of New Royalty Rates for Webcast Music

National Public Radio's Felix Contreras has a report on the protests brewing over the new royalty rates for music webcasts set to take effect July 15. The Copyright Royalty Board's decision setting rates per song and per listener has caused some broadcasters to predict they will be forced to shut down and made some members of Congress introduce bills to deal with the CRB's decision. Read a prior post here and stay tuned.

Update on the Conrad Black Trial

The Globe and Mail reports that Judge Amy St. Eve is likely to charge the jury today in the Conrad Black criminal trial now underway in Chicago. Lord Black and his co-defendants are defending themselves against charges that they took millions of dollars from Hollinger International, a company Lord Black used to control. Read more here.

Website Shut Down Over Copyright Complaints

Its host shut down the website PerezHilton.com on Tuesday after numerous complaints came in alleging that celebrity journalist Perez Hilton had posted copyright photographs on the site. Mr. Hilton says he is entitled to use the photos under the Fair Use Doctrine. He found another ISP by Wednesday of last week and was open for business again. In February Universal Studios sued him for copyright infringement over photos of Jennifer Aniston posted on his site (documents posted on The Smoking Gun website), and other suits are underway.