Friday, November 16, 2007
Thursday, November 15, 2007
When Paris Hilton sued Hallmark Cards over its use of her image in a greeting card, she claimed that it had misappropriated her identity, invaded her privacy, falsely represented that she endorsed the product, and infringed her trademark, among other things. Now the company has responded. Says Hallmark, "Hilton apparently believes that she can control not only how she is commented upon, but who can say the words "that's hot." The law, however does not allow Hilton to quash such a portrayal, nor does it grant her the power to stop others from using her purported catch phrase to poke fun at her. Hilton's claims fail as a matter of law, and each should be dismissed without leave to amend."
The Writers Guild of America has backed down from a position that would have prevented its members from working on animated films, and would have brought it into a clash with the International Alliance of Theatrical Stage Employees (IATSE). Writers working on animated films, said the WGA, had to honor the WGA strike. But the Animation Guild, part of IATSE, did not see why its members should be put out of work. After negotiation, the WGA changed its stance. Read more here in a Reuters report.
[Thanks to Jeff Keiser].
Wednesday, November 14, 2007
An Australian judge has fined a Sydney man one thousand dollars (nearly nine hundred dollars U.S.) for uploading The Simpsons movie to the Internet, thus violating copyright laws. Said the man's lawyer, "It would appear that this young man had the sophistication of a dead fish." Read more here and here.
Judith Regan, the publisher whose career ended in the wake of the turmoil over the O. J. Simpson "If I Did It" manuscript, is suing NewsCorp for defamation. In papers filed, she says, among other things, that at least one employee at NewsCorp wanted to protect Rupert Murdoch ally Rudolph Guiliani and his friend Bernard Kerik, with whom she had had an affair, and in order to do that, was willing to ask her to lie about the affair. The New York Times' Russ Buettner details this and other Regan claims in an article in today's issue of the paper. Ms. Regan is suing for one hundred million dollars, according to the Associated Press.
FCC Chair Kevin Martin has proposed changes to the media cross ownership rules. Here is his statement.
– Chairman Kevin J. Martin proposes that the Commission conclude its review of the broadcast ownership rules by adopting the regulatory changes set forth in Attachment A.
Chairman Martin proposes the Commission amend the 32-year-old absolute ban on newspaper/broadcast cross-ownership by crafting an approach that would allow a newspaper to own one television station or one radio station but only in the very largest markets and subject to certain criteria and limitations. Chairman Martin also proposes that the Commission make no changes to the other media ownership rules currently under review. The newspaper/broadcast cross-ownership rule currently prohibits common ownership of a broadcast station and a daily newspaper in the same market. Although the U.S. Court of Appeals for the Third Circuit (Court) remanded the specific cross-media ownership limits drawn by the Commission in 2003, it affirmed the Commission’s determination that this blanket ban on newspaper/broadcast cross-ownership was no longer in the public interest. The Court agreed that “…reasoned analysis supports the Commission’s determination that the blanket ban on newspaper/broadcast cross-ownership was no longer in the public interest.”
The media marketplace has changed considerably since the newspaper/broadcast cross ownership was put in place more than thirty years ago. Back then, cable was a nascent service, satellite television did not exist and there was no Internet. Consumers have benefited from the explosion of new sources of news and information. But according to almost every measure newspapers are struggling. At least 300 daily papers have stopped publishing over the past thirty years. Their circulation is down, their advertising revenue is shrinking and their stock prices are falling. Permitting cross-ownership can preserve the viability of newspapers by allowing them to share their operational costs across multiple media platforms. Chairman Martin’s proposal would permit cross ownership only in the largest markets where there exists competition and numerous voices. The revised rule would balance the need to support the availability and sustainability of local news while not significantly increasing local concentration or harming diversity. Under the new approach, the Commission would presume a proposed newspaper/broadcast transaction is in the public interest if it meets the following test:
(1) the market at issue is one of the 20 largest Nielsen Designated Market Areas (“DMAs”);
(2) the transaction involves the combination of a major daily newspaper and one television or
(3) if the transaction involves a television station, at least 8 independently owned and operating major media voices (defined to include major newspapers and full-power commercial TV stations) would remain in the DMA following the transaction; and
(4) if the transaction involves a television station, that station is not among the top four ranked stations in the DMA.
All other proposed newspaper/broadcast transactions would continue to be presumed not in the public interest.
Moreover, notwithstanding the presumption under the new approach, the Commission would consider the following factors in evaluating whether a particular transaction was in the public interest:
(1) the level of concentration in the DMA;
(2) a showing that the combined entity will increase the amount of local news in the market;
(3) a commitment that both the newspaper and the broadcast outlet will continue to exercise its own independent news judgment; and
(4) the financial condition of the newspaper, and if the newspaper is in financial distress, the owner's commitment to invest significantly in newsroom operations.
This proposed rule change is notably more conservative in approach than the remanded newspaper/broadcast cross-ownership rule that the Commission adopted in 2003. That rule would have allowed transactions in the top 170 markets. The rule Chairman Martin proposes today would allow only a subset of transactions in only the top 20 markets, which would still be subject to an individualized determination that the transaction is in the public interest.
With respect to the remaining broadcast ownership rules currently under review, the Chairman believes that any further relaxation in the radio or television broadcast markets should not be allowed. He therefore proposes to make no changes to the local television “duopoly” rule, the local radio ownership rule, and the local radio-television cross ownership rule currently in force.
The Chairman invites public comment on his proposals. Comments should be filed in MB Docket No. 06-121 by Dec. 11, 2007.
Here is a link to the statement on the FCC's website.
Here is the text of Commissioners Copps and Adelstein's response to Chair Martin's proposal to revamp the media cross-ownership rules, announced this week.
This is portrayed as a moderate proposal, but it is a wolf in sheep’s clothing. Don’t let the wool be pulled over your eyes. The proposal could repeal the ban in every market in America, not just the top twenty. Any city, no matter how small, could be subjected to newspaper broadcast ownership combinations under a very loose standard.
Under Chairman Martin’s plan, all markets will be open to one company combining broadcast properties with cable, the newspaper (already a monopoly in most places), even the Internet Service Provider. His proposal could propel a frenzy of competition-stifling mergers across the land. He can try to characterize his plan as affecting only the “largest markets,” but consider:
- The top 20 markets account for over 43% of U.S. households. Even on its face, this proposal directly affects over 120 million Americans.
- The Chairman then creates a loophole that Big Media will drive a truck through, permitting a newspaper-broadcast combination in any market in the country. We have seen how loosely the Commission has granted waivers in the past. If this proposal goes through, the FCC could grant cross-ownership applications in such small towns as Meridian, Mississippi and Bend, Oregon. When big conglomerates can’t get their way in a general rule, they press for loopholes that swallow the rule, and they would succeed with this approach.
- The non-top four stations that major newspapers will now be competing for are precisely the stations more likely to be owned by small, independent broadcasters. If we ever got serious about women and minority ownership, these are also the stations most available to them. Chairman Martin’s rule pretty much reserves these outlets for the big guys. So this proposal actually perpetuates the shamefully low levels of minority and female media ownership.
The Martin rules are clearly not ready for prime time. Under the Chairman’s timetable, we count 19 working days for public comment. That is grossly insufficient. The American people should have a minimum of 90 days to comment, just as many Members of Congress have requested. More importantly, the Commission has yet to finish its Localism proceeding, teed up four years ago, or to forward comprehensive ideas to increase women and minority ownership of broadcast outlets.
There is still time to do this the right way. Congress and the thousands of American citizens we have talked to want a thoughtful and deliberate rulemaking, not an alarming rush to judgment characterized by insultingly short notices for public hearings, inadequate time for public comment, flawed studies and a tainted peer review process – all designed to make sure that the Chairman can deliver a generous gift to Big Media before the holidays. For the rest of us: a lump of coal.
We realize there is some urgency with respect to the Tribune transaction. The Chairman, however, has refused to act on Tribune’s waiver requests that would permit the transaction to close. Let us be clear: it is improper to hold the Tribune hostage in order to force a vote on media ownership before the end of the year. We are prepared to vote on the Tribune waiver requests within three working days after the Chairman circulates a draft decision. There is simply no excuse for using Tribune as a human shield.
Here is a link to the document.
Tuesday, November 13, 2007
Tenth Circuit Upholds Lower Court Dismissal of Invasion of Privacy Claims Against Media, Police Officer
The Tenth Circuit has upheld a lower court's dismissal of a plaintiff rape survivor's claims of federal invasion of privacy and state intrusion into seclusion against a television station, a reporter, and a police officer, for tortious use of a videotape that documented her estranged husband's sexual assault on her.
Aundra Anderson appeals several district court rulings in this action brought pursuant to 42 U.S.C. § 1983 and Oklahoma state tort law. She had sued Kimberly Lohman, a reporter from local television station KOCO-TV ("KOCO"), and the company that owns and operates KOCO (Ohio/Oklahoma Hearst-Argyle Television, Inc.) (hereinafter "the media defendants"), along with Officer Don Blake of the Norman Police Department. Anderson appeals 1) the district court's order partially granting the media defendants' motion to dismiss by dismissing her federal right to privacy and state intrusion upon seclusion claims, and 2) the district court's order granting the media defendants' motion for summary judgment on her publication of private facts claim. She contends the district court erred in concluding that the media defendants were not state actors, and in concluding that her allegations and proffered evidence failed to support her state law tort claims against them. Additionally, she challenges the district court's denial of leave to amend her complaint to add claims against the media defendants for promissory estoppel and tortious or malicious interference with a contract. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. I.
Anderson alleges that she was raped by her estranged husband while she was unconscious. Anderson did not know of the rape until June, 2003, when she found a videotape of the incident. Anderson gave the videotape to Officer Blake and agreed to press charges after Blake promised that the videotape would be kept confidential and would be used only for law enforcement purposes. Anderson alleges that Blake told her that the only people who would see the tape would be himself, his partner, a judge, and a jury.
Before any charges had been filed in Anderson's case, Blake gave an interview to Lohman about Anderson's allegations. By this time, Anderson's husband had already been arrested on other sexual assault charges involving other alleged victims. Blake showed Lohman the videotape, and Lohman asked if she could record it to obtain a "head shot" of the alleged perpetrator. Aplt. App. at 336. Blake contends that he agreed to allow Lohman to record and display the videotape's contents on the air, so long as the broadcast was limited to a view of the perpetrator's face and was "tasteful." Id. at 337. Lohman promised Blake she would only use a view of the perpetrator's face in her report. Anderson alleges that, before the news segment aired, Blake contacted her by telephone and said that he wanted her to speak with Lohman. Anderson replied that she did not want to talk to the press, but Blake put Lohman on the telephone anyway. Anderson refused to answer most of Lohman's questions. During their conversation, Lohman told Anderson that she had viewed the videotape. Anderson alleges that she never authorized Lohman to view or use the videotape in any way. During the 10:00 p.m. newscast of July 3, 2003, KOCO aired Lohman's story about Anderson's allegations, including excerpts from the videotape.
Several days after the broadcast, charges were filed against Anderson's husband for crimes committed against Anderson. After the July 3rd KOCO broadcast, Anderson refused to cooperate with the district attorney's office, and the charges involving Anderson were eventually dropped. Anderson then filed this § 1983 action against Blake and the media defendants. Anderson alleged that all of the defendants had violated her federal constitutional right to privacy in the videotape. She also asserted that the media defendants had invaded her privacy rights under Oklahoma tort law.
Anderson relies on the joint action test and contends she has satisfied the state action requirement by showing the media defendants acted jointly with Blake, a state actor. Private participants acting jointly with state actors can satisfy the state action requirement if the private party is a "willful participant in joint action with the State or its agents." ...We examine "whether state officials and private parties have acted in concert in effecting a particular deprivation of constitutional rights."...Anderson argues that the facts alleged in her complaint evince such concerted action by claiming that the media defendants and Blake agreed to misuse Blake's authority to obtain access to and ultimately air the confidential videotape.
Anderson's allegations are inadequate to support her claim that the media defendants acted jointly with Blake to violate Anderson's right to privacy by airing a confidential videotape. Anderson does not allege that the media defendants knew about the confidentiality agreement between Anderson and Blake protecting the videotape's contents from disclosure. While Anderson asks us to infer such knowledge, she provides no basis for such an inference. Further, Anderson's complaint fails to allege facts demonstrating a shared purpose by Blake and the media defendants to violate Anderson's constitutional rights. At most, the complaint alleges that the parties had their own, separate goals: Blake wanted to appear on camera, and the media defendants wanted exclusive access to the investigation....Anderson also argues that the media defendants became state actors because they agreed with Blake to receive the leaked portions of the videotape and to air them on the nightly news. Without more, a reporter does not become a state actor, however, simply because she has received and published information from a governmental official, as the media defendants did here.
Turning briefly to the district court's dismissal of Anderson's intrusion upon seclusion claim, Anderson provides no support in her opening brief for her contention that the district court erred in dismissing this claim....She cites cases which set forth the elements of an "intrusion" claim, but fails to tie those cases to the facts of her case. The only other reference to her intrusion claim is in her "Statement of the Issues for Review," where she states:
The district court erred in dismissing a state claim for "intrusion into seclusion" because release of the entire rape video to the KOCO defendants was an intentional intrusion into a private matter highly offensive to a reasonable person. . . . The violations of federal privacy and the state "intrusion into seclusion" were completed when Blake released the video to the KOCO defendants. Id. at 4-5. These arguments are not only untethered to any legal citation, but also are too conclusory to permit judicial review....We therefore decline to address any claimed issue involving the district court's dismissal of Anderson's intrusion upon seclusion claim.
We next turn to the district court's grant of summary judgment for the media defendants on Anderson's publication of private facts claim. We review the district court's grant of summary judgment de novo under the same standard that the district court applied.
Anderson argues that the district court incorrectly granted the media defendants summary judgment on her publication of private facts claim. Anderson alleges in her publication of private facts claim that the media defendants tortiously published private facts about her when they aired the videotape. We agree with the district court that Anderson failed to create a genuine issue of material fact as to this claim because the material published was substantially related to a matter of legitimate public concern.
Even where certain matters are clearly within the protected sphere of legitimate public interest, some private facts about an individual may lie outside that sphere. . . . [T]o properly balance freedom of the press against the right of privacy, every private fact disclosed in an otherwise truthful, newsworthy publication must have some substantial relevance to a matter of legitimate public interest.
Anderson raises two arguments which challenge the videotape's substantial relevance to a matter of legitimate public concern. First, Anderson argues the videotape was highly personal and intimate in nature. While the sensitive nature of the material might make its disclosure highly offensive to a reasonable person, that does not make the videotape any less newsworthy so long as the material as a whole is substantially relevant to a legitimate matter of public concern.
By holding that the content of the media defendants' newscast was substantially relevant to a matter of legitimate public interest, we do not imply that members of the media may escape any liability for publication of private facts whenever the subject of the publication is an alleged perpetrator of a crime. Some facts about the victim of an alleged crime will be too tangential to the prosecution of the perpetrator to be substantially relevant to a matter of legitimate public interest. Wherever that line may be drawn in other cases, the facts that the media defendants published in this case, for the reasons stated above, are substantially relevant to the alleged criminal activities of Anderson's husband, a matter of legitimate public concern. The focus of the news broadcast was on the perpetrator, not the victim. And as even Anderson acknowledges in her brief, she was never identified by name, and the excerpted portion of the videotape was limited to a few movements of the alleged attacker's naked body without disclosing the sexual acts in great detail; only Anderson's feet and calves were clearly visible, and they bore no identifying characteristics. Aplt. Opening Br. at 11. We can understand entirely why Anderson found the public display of any portion of the tape highly distressing, perhaps especially after having received Blake's assurance that it would be viewed by only himself, his partner, a judge, and a jury. But it is also difficult to see how the broadcast at issue could be said to have no legitimate public interest the test we must apply. Had the broadcast gone further in invading Anderson's privacy, rather than focusing on her estranged husband's wrongdoing, we would have had a very different case. But the simple fact is that this was a broadcast about a rapist, not a rape victim, and the legitimate privacy interests of the two could not be more different.
Read the entire ruling here.
Monday, November 12, 2007
The Press Complaints Commission has resolved a complaint against the Mail on Sunday (Scottish edition) in favor of the complainant, Alan Bain. The paper ran a story saying that Mr. Bain and his charity, the American-Scottish Foundation, were under investigation by the New York Attorney General's office. Here is an excerpt from the PCC's ruling.
The article reported that the complainant and the charity of which he was president, the American-Scottish Foundation ® (ASF), were at the centre of a criminal investigation into how charity money had been spent.
The complainant said neither criminal nor civil investigations were underway. The reality was that a freelance journalist working for the newspaper had made a complaint about him to the Office of New York’s Attorney General (ONYAG) in the knowledge that any complaint she lodged would have to be ‘evaluated’. However, no formal investigation had subsequently been initiated. Readers would have been misled into believing that complaints about the complainant had been made by third parties.
The newspaper said the journalist had lodged the complaint after concerns were raised with her by third parties.
The Commission considered that the article was clearly misleading as it failed to make clear that the complaint to ONYAG had been made by the article’s author. While she may well have made the complaint as a result of concerns being raised with her by third parties, this was not reflected in the coverage.
There was also no evidence that, as a result of the complaint, the complainant or the ASF charity were ‘at the centre of a criminal investigation’. Although there was some dispute as to whether a representative from ONYAG had confirmed the existence of ‘an investigation’ prior to the article being published, the only formal statement from ONYAG (made after the article appeared) stated that the complaint was being ‘evaluated’ and that an ‘investigation’ might follow. The Commission concluded that by overstating the position in this way the newspaper had failed in its duty under Clause 1 to take care not to publish inaccurate material.
Mr Bain further complained that the article contained a number of particular inaccuracies. He had not ‘wined and dined’ a string of politicians; ASF had not paid for any flights he had made to Scotland; he had not flown to Scotland solely to present a Tiffany gift; ASF had not sanctioned any donation to the Harris Tweed industry. The article failed to make clear that the complainant and his family had made donations to ASF in excess of $450,000 over the years. Moreover, one of the complainant’s companies – World-Wide Business Centre (WWBC) – had provided cut-price services to the charity since 1991. All payments to WWBC had been sanctioned by the board of ASF and there was simply no evidence of the complainant being involved in illegitimate financial practices.
The newspaper offered to publish a statement making clear that the complainant and his family had made significant donations to ASF and that WWBC had donated reduced-cost services to ASF. In addition, it would make clear that the complainant had no interest in the Harris Tweed industry when ASF made a donation to The Highland Fund. The statement included an apology for any distress caused.
The complainant rejected the newspaper’s offer and put forward an alternative, longer wording, which the newspaper was not prepared to publish.
The Commission did not consider that the reference to ‘wining and dining’ politicians was significantly misleading given that the complainant had, in his role as president of ASF, hosted various functions attended by political figures....
On the other points of dispute – regarding the ASF paying for flights, the Harris Tweed industry and, most importantly, the donations made by the complainant and his family and by WWBC (through reduced-cost services) – the Commission agreed that it was appropriate for the newspaper to offer some form of remedy. It was satisfied that the newspaper’s proposed statement, including as it did an apology, was a proportionate response to this part of the complaint.It therefore hoped that the complainant would now take up the offer.
Complaints are rolling in over Pakistani President Pervez Musharraf's treatment of three British journalists on Friday. He ordered the three reporters to leave the country within three days. According to Telegraph Media Group, they have now done so. Various NGOs and national groups including Reporters Without Borders have condemned President Musharraf's order. Read more in a Guardian article here.
David Leigh of the Guardian writes about why he fears the end of the reporter's role and an increase in "news bunnies"--people who "dash in front of a camera and breathlessly describe a lorry crash, or bash out a press release in 10 minutes". This trend will not, he contends, add much to good journalism. In addition, traditional journalism is changing, fueled partly by the increasing takeover of the media by conglomerates and partly by the new technology. What he is asking for is a "Slow Journalism Movement" and a demand for real news and real reporting that focuses on important issues. Read his comments here.