Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

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Wednesday, March 11, 2009

What Not To Say

The tabloid OK! has apologized for updating former Spice Girls Victoria Beckham's wardrobe in a recent cover. She was actually wearing a red dress, but OK! fashion police editors apparently thought she looked better in black. The photo also shows her next to songstress Cheryl Cole, and implies that the two have resolved some sort of (non-existent) feud. But the two were not at the same get-together; the picture is a montage.

March 11, 2009 | Permalink | TrackBack (0)

Anti-Putin Song Out of Eurovision Song Contest

The Republic of Georgia may be anti-Putin, but the Eurovision song contest folks aren't. They've told Georgia to pull its entry, "We Don't Wanna Put In," and submit something else. The song and its lyrics are, well, against the rules, which hold that no "lyrics, speeches, gestures of a political or similar nature shall be permitted during the Eurovision song contest." More here in a Guardian story.

March 11, 2009 | Permalink | TrackBack (0)

Tuesday, March 10, 2009

Novelist Must Pay Lawyers' Fees In Dispute Over Film

Novelist Clive Cussler, who lost a suit against Crusader Entertainment, the studio that took his book Sahara to the big screen, now has a big bill for lawyers' fees. The movie starred Penelope Cruz and Matthew McConaughey, and it got lost in the sand dunes, making back less than $70 million of its reputed $160 million in costs. Mr. Cussler sued the company, alleging that it had breached an agreement giving him script approval, and the studio countersued, claiming he had not been honest about book sales. The judge in the case told the author he is responsible for attorney fees totaling nearly $14 million.

March 10, 2009 | Permalink | TrackBack (0)

Appeals Court Reverses Trial Court, Finds Anti-SLAPP Statute Applies To Reporter's Conduct

In an unpublished opinion out of the 1st Circuit court of appeal (California), the court reversed the lower court. Plaintiff had sued a San Francisco newspaper and its reporter/photographer for invasion of privacy. The defendants filed an anti-SLAPP motion. The trial court found in favor of the plaintiff and allowed the case to proceed.

In the present case, the trial court erred in finding that section 425.16 categorically does not apply to a complaint for assault. Our Supreme Court has stated: "The anti-SLAPP statute's definitional focus is not the form of the plaintiff's cause of action but, rather, the defendant's activity that gives rise to his or her asserted liability--and whether that activity constitutes protected speech or petitioning. Evidently, '[t]he Legislature recognized that "all kinds of claims could achieve the objective of a SLAPP suit--to interfere with and burden the defendant's exercise of his or her rights." ' [Citation.] 'Considering the purpose of the [anti-SLAPP] provision, expressly stated, the nature or form of the action is not what is critical but rather that it is against a person who has exercised certain rights' [citation]." ...

There can be no question that reporting on a witness who testifies at a criminal trial involving a high-level public official charged with corruption is protected activity under section 425.16, subdivision (e)(4). And the complaint contains no allegations suggesting that Choy was acting in any capacity other than as a reporter gathering information on a news story when the alleged assault occurred.

Even if the alleged assault, standing alone, would not otherwise constitute protected conduct, Choy's actions must be evaluated in their entirety: " '[W]here a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.16 unless the protected conduct is "merely incidental" to the unprotected conduct [citations] . . . .' ...

Here, the gravamen of respondent's action was based on appellants' First Amendment right to report on issues of public interest. Choy's protected conduct of reporting on respondent's testimony at the Fallay trial was not "merely incidental" to the conduct alleged to be an assault. Moreover, Choy's evident purpose in attempting to push aside respondent's hand and briefcase (assuming that she, in fact, did so) was to take photographs of him for her news story. Accordingly, the complaint alleges conduct that is protected by section 425.16.

The case is Yan v. Sing Tao Newspapers San Francisco, 2008 Cal. App. Unpub. LEXIS 7644.

March 10, 2009 | Permalink | TrackBack (0)

Google, PRS Negotiations Over Licensing Break Down

Google and the (British) Performing Rights Society for Music have been unable to come to an agreement concerning licensing fees. As a result, YouTube is yanking popular videos from labels such as EMI, Warner, and Sony as well as smaller companies from its site. PRS, anticipating the disappointment if not anger of users, is saying that it has not told YouTube to do so. Read more here. Here is part of the PRS's statement from its website.

PRS for Music is outraged on behalf of consumers and songwriters that Google has chosen to close down access to music videos on YouTube in the UK.

Google has told us they are taking this step because they wish to pay significantly less than at present to the writers of the music on which their service relies, despite the massive increase in YouTube viewing.

This action has been taken without any consultation with PRS for Music and in the middle of negotiations between the two parties.  PRS for Music has not requested Google to do this and urges them to reconsider their decision as a matter of urgency.

Steve Porter CEO PRS for Music said "We were shocked and disappointed to receive a call late this afternoon informing us of Google's drastic action which we believe only punishes British consumers and the songwriters whose interests we protect and represent."

Google had revenues of $5.7bn in the last quarter of 2008.

Here's part of a statement from YouTube.

Our previous license from PRS for Music has expired, and we've been unable so far to come to an agreement to renew it on terms that are economically sustainable for us. There are two obstacles in these negotiations: prohibitive licensing fees and lack of transparency. We value the creativity of musicians and songwriters and have worked hard with rights-holders to generate significant online revenue for them and to respect copyright. But PRS is now asking us to pay many, many times more for our license than before. The costs are simply prohibitive for us -- under PRS's proposed terms we would lose significant amounts of money with every playback. In addition, PRS is unwilling to tell us what songs are included in the license they can provide so that we can identify those works on YouTube -- that's like asking a consumer to buy an unmarked CD without knowing what musicians are on it.

We're still working with PRS for Music in an effort to reach mutually acceptable terms for a new license, but until we do so we will be blocking premium music videos in the UK that have been supplied or claimed by record labels. This was a painful decision, and we know the significant disappointment it will cause within the UK. And to be clear, this is not an issue with the record labels, with most of whom we have strong relationships.

The Guardian notes that MySpace users as well as other third parties, such as Pandora, could be or are already affected.

March 10, 2009 | Permalink | TrackBack (0)

An Added Burden For Speakers In Copyright Law

Ned Snow, University of Arkansas, Fayetteville, School of Law, has published "Proving Fair Use: Burden of Proof as Burden of Speech." Here is the abstract.
Courts have created a burden of proof in copyright that chills protected speech. The doctrine of fair use purports to ensure that copyright law does not trample rights of speakers whose expression employs copyrighted material. Yet those speakers face a burden of proof that weighs heavily in the fair use analysis, where factual inquiries are often subjective and speculative. Failure to satisfy the burden means severe penalties, which prospect quickly chills the free exercise of speech that constitutes a fair use. The fair use burden of proof is repugnant to the fair use purpose. Adding to this repugnancy is the fact that the burden is the product of a mistake. For over a century, courts recognized that speakers of fair use expression should not bear this burden. Then modern courts mistakenly interpreted fair use as excusing, rather than defining, infringement, and as a result, they placed the burden on the party seeking to invoke the excuse. The mistaken nature of this interpretation becomes apparent when examining the jurisprudence that gave birth to fair use and the statute that governs its present application: both indicate that the burden should lie with rights-holders rather than fair users. Today, the misplaced burden of proof exacts a high cost of speech: rights-holders are exploiting the burden with internet efficiency against individual fair users. This Article therefore proposes that the burden of proof should once again lie with rights-holders.
Download the paper from SSRN here.

March 10, 2009 | Permalink | TrackBack (0)

Mexican Journalist Asks For Asylum in US

National Public Radio has this story about Mexican journalist Emilio Gutierrez Soto's request for political asylum in the U.S., based on stories he has written about crime in northern Chihuahua. He alleges that members of the military have made threats made against him because of his reporting.

March 10, 2009 | Permalink | TrackBack (0)

Cook County Sheriff Sues Craiglist Over "Erotic Ads"

As if Cook County weren't in the news enough lately, its sheriff is suing Craigslist over its "erotic services" section, alleging that it promotes prostitution. Sheriff Thomas Dart says that Craigslist is ""the single largest source of prostitution in the nation" because it in essence allows one-stop shopping. Read more here in a BBC story. Here's a response from Craigslist.

March 10, 2009 | Permalink | TrackBack (0)

SSRN Announces New Journal In Law, Politics and the Media

SSRN, the abstracting service, has announced a new journal in law, politics, and the media. Here's more information.

View Papers: http://www.ssrn.com/link/Law-Politics-Media.html
Preview the First Issue: http://papers.ssrn.com/sol3/sample_issues/1321348_CMBO.html
Subscribe: http://hq.ssrn.com/jourInvite.cfm?link=Law-Politics-Media

Editor: Keith James Bybee, Syracuse University College of Law

Sponsor: The Institute for the Study of the Judiciary, Politics, and the Media (IJPM) is a collaborative effort between Syracuse University's College of Law, Maxwell School of Citizenship and Public Affairs, and S.I. Newhouse School of Public Communications. IJPM is devoted to the interdisciplinary study of issues at the intersection of law, politics, and the media. The Institute sponsors lectures, conferences, and symposia designed to foster discussion and debate between legal scholars, sitting judges, and working journalists. The Institute provides research grants and seed money for scholars pursuing law-oriented projects that cut across traditional academic boundaries. The Institute also oversees a cross-disciplinary graduate certificate program organized around a team-taught course offerings. To learn more about IJPM and its activities, please visit http://jpm.syr.edu/.

Description: Legal systems operate in a complex environment of principle, political pressure, and media coverage. The goal of the Law, Politics, & the Media subject journal is to publish abstracts of working papers and articles that promote a more integrated understanding of law, courts, and their environment. To this end, the journal seeks scholarship that addresses any combination of legal, political, and media-related themes in the analysis of legal institutions, beliefs, and practices. The journal is open to work from the social sciences, the humanities, and the legal academy. Papers and articles that focus on the United States, as well as scholarship that is comparative or international in scope, are welcome.

HOW TO SUBSCRIBE
You can subscribe to the eJournals by clicking on the "subscribe" links listed above.

You can modify your subscriptions by going to the SSRN User HeadQuarters: http://hq.ssrn.com. If you have questions, please email [email protected] or call 877-SSRNHelp (toll free 877.777.6435 within the United States or 00+1+585+4428170 outside of the United States).

March 10, 2009 | Permalink | TrackBack (0)

Monday, March 9, 2009

Japanese Magicians Lose Case Over Disclosure of Secrets

That Japanese magicians' lawsuit against the Nippon Television Network alleging exposure was apparently dismissed. I'm relying here on a blogpost since I don't read Japanese.

The problem here for the magicians was that the broadcasts involved centered on the delivery of news. Specifically, they were reporting on the arrest of two people who were attempting to defraud using coin tricks. The reports explained the tricks during the course of the reports, and the magicians sued, claiming that the explanations were not necessary to report the stories.

Apparently the judge ruled that the tv network's intent was to impart news and not to deprive the magicians of their professional secrets. He also ruled that magicians' secrets are generally available in books and the like, although I don't know if he found specifically that these particular secrets are generally available. Obviously, that might make a difference. If the defendants got hold of them and used them to commit crimes, then revealing them could easily be part of a news story. But if not, and a reporter went ahead and revealed them, then I could understand how a magician might easily make the argument that a reporter need not reveal a trade secret in order to illustrate such a story. The magicians say they will appeal.

[See here for related post].

March 9, 2009 | Permalink | TrackBack (0)