Friday, November 9, 2007
With the Writers' Guild of America having shut down film and tv production for the indefinite future, it looks as if Broadway may be head for the same fate. The Broadway stagehands' union is set to strike now that it has received permission from the International Alliance of Theatrical Stage Employees. At issue are work rules and benefits. Read more here in a New York Times story.
More embarrassing news for the BBC show "Blue Peter": it turns out that two child "viewers" advertised for via a website and selected to meet Jon Culshaw, a star of the hit show "Dead Ringers" were actually members of a local drama club. The BBC hastens to clarify that the children were still amateurs, not professional actors. The truth came out after one of the children admitted to another one participating that he was from "an agency." Read more here in a BBC story and here in a Times Online story.
Wednesday, November 7, 2007
Songster Prince is threatening to sue fans over their Internet use of his photos and other Prince-inspired material, which he alleges constitutes copyright infringement. Some of the biggest sites have decided to oppose his move by banding together in a group called "Prince Fans United", claiming that the legal action constitutes infringement of their freedom of speech. Read more here in a Guardian Unlimited story and here in a CBC story. Here's an earlier story about legal action threatened against posters of audio and video clips.
Tuesday, November 6, 2007
A district court has ruled that a blogger's use of a trademark did not support a claim for misappropriation and has granted his request for summary judgment in Bidzirk v. Smith. "BidZirk alleges a claim under the Lanham Act for damages and an injunction, alleging that Smith improperly placed BidZirk’s trademark on his blog. In addition, Schmidt has sued for defamation alleging that Smith published false and derogatory statements about Schmidt on his blog. Finally, Schmidt and Jill Patterson (“Patterson”) have sued for invasion of privacy alleging that Smith linked their picture to the blog. The link was an article with a picture of Schmidt and Patterson in it. Smith failed to answer and on February 16, 2006, a default was entered by the clerk. The court set aside entry of default on February 27, 2006, and allowed Smith time to answer."
Smith had called Schmidt a "yes man" on his blog. With regard to the defamation claim, because Smith's statements about Schmidt could not be proven false, Schmidt could not recover for defamation. "Further, even if the term “yes man” could be verified as true or false, it is plainly not defamatory. Immediately after stating that Schmidt seemed like a “yes man,” Smith describes Schmidt as possibly tech savvy, which is a positive statement about Schmidt. In addition, Smith stated that in the ebay industry many sellers commonly over promise and under deliver. However, Smith never said that Schmidt over promised and under delivered in this transaction. None of Smith’s statements “reduce[d] [Schmidt’s] character or reputation in the estimation of his friends or acquaintances, or the public, or to disgrace him, or to render him odious, contemptible, or ridiculous.”...Based on the foregoing, the court finds that Smith’s statements were patently not defamatory."
With regard to the invasion of privacy claim, the court said: "In South Carolina, three separate and distinct causes of action can arise under the rubric of invasion of privacy: (1) wrongful appropriation of personality; (2) wrongful publicizing of private affairs; and (3) wrongful intrusion into private affairs.” .... In their complaint, Schmidt and Patterson allege a claim for wrongful appropriation. However, in their memorandum in opposition to Smith’s summary judgment motion, Schmidt and Patterson concede that they have no invasion of privacy claim arising under the three causes of action listed above....Instead, Patterson and Schmidt allege a claim for false light invasion of privacy. No South Carolina court has recognized a cause of action for false light invasion of privacy. Therefore, this claim fails as this cause of action does not exist under South Carolina law. Further, to the extent South Carolina would recognize this cause of action, the claim is wholly without merit." With regard to any other invasion of privacy claim, Smith linked to another website which contained material about Schmidt and Patterson; Schmidt and Patterson had consented to that website's inclusion of material about them (their photo). "Smith did not transport the picture to his blog. Instead, Smith’s blog contained a link that readers could click on that takes the reader to the site where the article and picture are located....The court finds that “a person who places a photograph on the Internet precisely intends to forsake and renounce all privacy rights to such imagery, particularly under circumstances . . .where [Patterson and Schmidt] did not employ protective measures or devices that would have controlled access to the Web page or the photograph itself.”....Further, there is no evidence that Smith’s link to the article containing the picture of Patterson and Schmidt was done to benefit Smith in any way. Based on the foregoing, the court finds that Schmidt and Patterson consented to the display of their picture on the internet."
With regard to the Lanham Act claim and the request for an injunction, the court ruled that "[e]ven if Smith has infringed BidZirk’s mark, the court finds that this infringement is excused by a statutory defense. Under § 1125(c)(4)(C), no “forms of news reporting and news commentary” are actionable under § 1125. These terms are not defined in the Lanham Act. Further, there is no published case deciding whether a blogger is a journalist. However, in determining whether Smith was engaged in news reporting or news commentating, the court has applied the functional analysis suggested by commentators and the Plaintiffs in their memorandum in support of a preliminary injunction, which examines the content of the material, not the format, to determine whether it is journalism." The court found that Smith did have a journalistic or investigative reporting purpose in publishing the blogpost.
The court also sanctioned the plaintiffs' attorney for filing a lis pendens against Smith's real property (a condominium). "The court finds that the degree of Plaintiffs’ counsel’s culpability weighs heavily in favor of sanctioning the Plaintiffs’ counsel, Kevin Elwell (“Elwell”). Elwell is a competent attorney who knew or should have known with the most basic research that his actions were improper. In addition, after Smith moved to strike the lis pendens, Elwell argued in court that the lis pendens was proper. Elwell had no basis to support his position....Further, the court finds that Smith has been prejudiced by the filing of the lis pendens. The title to his property was clouded for over six months. Smith alleges that during that time he was attempting to sell his property. Moreover, the public interest in preventing legal counsel from filing improper lis pendens and encumbering property is great. A lis pendens is a very powerful document and the statute is strictly applied because a lis pendens clouds the title to property. There is no evidence that Elwell’s client is responsible for Elwell’s wrongful conduct. However, taking into account the facts and the factors listed above, the court finds that based on Elwell’s grossly improper conduct, he should be sanctioned in the amount of $1,000.00 payable immediately to the Defendant."
Mr. Smith represented himself.
The case is Bidzirk v. Smith, C.A. No. 6:06-109-HMH (U.S.D.C., D.So. Car.)(2007). Read the entire ruling here.
Monday, November 5, 2007
The Guardian's Mark Borkowski gives Heather Mills McCartney (soon to be just Heather Mills) some advice after her round on the U.S. morning talk show circuit here. Among his points: that she needs to understand that when you marry a celeb, you are a celeb: you can't take what the press says so seriously. Otherwise, it will just come after you with a vengeance. "Unfortunately for Mills, Paul McCartney is, like Cliff Richard, a national treasure. It is not the media she is fighting but her husband's reputation. If she is to move on and win over the public, she must accept that McCartney is the greater global celebrity....[T]o start again, Mills must grasp that the public and the media take a sadistic pleasure in, and have a morbid fascination with, vicarious suffering - it is a circulation and audience winner. Belittling celebrities or watching them get their comeuppance is the modern equivalent of the gladiatorial games, and the press is our Colosseum. To move on, she must grasp the fundamentals. She must stand back and allow her publicist to lead her. And she must try to contain her anger - if you are famous you cannot afford to take to heart all the things your critics say about you."
Sunday, November 4, 2007
NBC Nightly News Host Brian Williams made news last night as the first network news anchor to host Saturday Night Live. Critics have generally applauded his performance. Today, CNN's Reliable Sources subjected his gig to scrutiny, wondering if it was appropriate for a real journalist to guest on such a show, and noting that a real presidential candidate (Barack Obama) also made a cameo appearance. The verdict (3-1): Mr. Williams has the street cred to do so, because the audience can tell the difference between the evening news and a show like SNL, and nobody really applies a dignity measure to what presidential candidates do on entertainment shows.
I tend to think that's true. It can pay off; recall the saxophone-playing Bill Clinton's appearance on Arsenio Hall in 1992, and Richard Nixon's "sock it to me" guest shot on Laugh-In in 1968. The then-Veep Hubert Humphrey turned down an offer to do the same, and we know who won that election.
Meanwhile, Stephen Colbert's presidential aspirations seem dead in the water. The Executive Council of South Carolina's Democratic Party axed his ballot hopes by a 13-3 vote. But remember the Pat Paulsen Presidential campaigns (beginning in 1968). His campaign slogan: "Just a common, ordinary, simple savior of America's destiny." Is there a Draft Colbert Movement out there?
Aaron Sorkin, more famous to most of us as the creator of tv series such as The West Wing, has returned to Broadway with a play about Philo T. Farnsworth, his life, and his battle to be recognized as the inventor of television. Read more here in an article in today's New York Times.