Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, August 3, 2018

The Cost of Tariffs To Local Journalism

From CBS News, a report that the Administration's tariff on groundwood paper, imported from Canada,  may have a devastating effect on local newspapers because it raises the cost of printing those papers.

August 3, 2018 | Permalink

Wednesday, August 1, 2018

Adler on Why Art Does Not Need Copyright @nyulaw

Amy Adler, New York University School of Law, is publishing Why Art Does Not Need Copyright in volume 86 of the George Washington Law Review (2018). Here is the abstract.

This Article explores the escalating battles between visual art and copyright law in order to upend the most basic assumptions on which copyright protection for visual art is grounded. It is a foundational premise of intellectual property law that copyright is necessary for the “progress” of the arts. This Article demonstrates that this premise is flatly wrong when it comes to visual art. United States courts and scholars have come to understand copyright law almost universally in utilitarian terms; by this account, the reason we grant copyright to authors is to give them economic incentives to create culturally valuable works. But legal scholars have failed to recognize that their paradigm makes no sense when applied to visual art, one of the highest profile and most hotly contested fields in intellectual property law. This is because scholars have failed to take into account the single most important value for participants in the art market: the norm of authenticity, which renders copyright law superfluous. The fundamental assumption of copyright law — that the copy poses a threat to creativity — is simply not true for visual art. By juxtaposing copyright theory with the reality of the art market, this Article shows why copyright law does not — and cannot — incentivize the creation of visual art. In fact, copyright law, rather than being necessary for art’s flourishing, actually impedes it.

Download the article from SSRN at the link.

August 1, 2018 | Permalink

Monday, July 30, 2018

Hristov and Naplatanova on The Stereotype of Military Towards Journalists and Work with Embedded Reporters in Missions and Operations Abroad @GabiNaplatanova

Neno Hristov and Gabriela Naplatanova, National Defense Academy, Bulgaria, have published The Stereotypes of Military Towards Journalists and Work with Embedded Reporters in Missions and Operations Abroad, as part of the 5th International Conference on Education, Social Sciences and Humanities, 2-4 July, 2018 - Dubai. Here is the abstract.

The impact of the news technologies development on the news gathering business played significant role in setting new standards in the news coverage and the ethics of media outlets. The deadlines, the channels of communication and feedback changed so fast in terms of the media scope, focus, and news cycle. Accordingly, this process posed certain challenges for the military leadership regarding operational planning. Now they have to consider the adequate media coverage while thinking about personal and operational security of their units on the field. The information is considered to be the fifth domain of warfare along with earth, sky, sea and space. Due to that necessity we concluded survey of the attitude s for the ethical and technical standards of media and military in armed conflicts in Iraq and Afghanistan, so we can define the scope of cooperation between the two professional communities. We explored the stereotypes of 60 professionals from different back ground as media outlets, military expertise and job description, professionals with experience in missions abroad in conflict zones. The survey helped us to define the interactions between military and media in conflict zones; to determine the framework of their cooperation and the expectations they have, while trying to fulfil their obligations in the field. Our main task - to target and enlarge the mutual understanding about the other professional community's standards and operational procedures and to make media and military working together in a less confrontational manner without altering the real picture in the battle field. The media operations are considered to be essential part of the military operations with respect to the media influence in shaping public opinion. Because the public opinion back home is crucial to the operational success of the actions undertaken by the government. The journalists and the military officers consider the need for mutual training while working in hostile environment and building a standard procedure to be necessary and periodical in terms of avoiding shortcomings from previous operations. This is very positive trend for learning the good examples and unlearning the contra productive ones. This practice could be very useful in setting standards when a journalist willingly or unwillingly violates the ground rules while embedded in a military unit. 80 percent out of the all responders in the survey pointed out that media and military should have friendly and cooperative attitude towards each other in the field. Building ground rules procedures that could enable the working process both in media and military communities is crucial. So is the military leadership readiness to navigate the media expectations to build strong and fair reporting of facts and tell realistic, objective and compelling stories from the battle field.

Download the paper from SSRN at the link.

July 30, 2018 | Permalink

Franks on Feminism and the First Amendment @ma_franks

Mary Anne Franks, University of Miami School of Law, is publishing Beyond 'Free Speech for the White Man': Feminism and the First Amendment in Research Handbook on Feminist Jurisprudence (Cynthia Bowman & Robin West, eds., Elgar, 2018, Forthcoming). Here is the abstract.

According to First Amendment orthodoxy, we must protect the thought we hate in order to protect the speech we love. Defending the free speech rights of neo-Nazis, pornographers, and cross-burners – the speech of white male supremacy – supposedly secures the free speech rights of women and minorities. Free speech orthodoxy thus urges women and minorities to see themselves, quite literally, in white men. Feminist theory demonstrates, however, that protecting free speech for white men, far from protecting women and minorities, sacrifices and silences them. If free speech for all is the desired outcome, a dramatic reorientation of free speech theory and practice is required. Rather than urging women and nonwhite men to see themselves in white men, white men should be urged to see themselves in women and nonwhite men. When women’s free speech if protected, everyone’s free speech is protected.

Download the essay from SSRN at the link.

July 30, 2018 | Permalink

Thursday, July 26, 2018

Rothman on The Right of Publicity: Privacy Reimagined in New York? @profrothman

Jennifer Rothman, Loyola (Los Angeles) Law School; Yale Information Society Project; Yale Law School, is publishing The Right of Publicity: Privacy Reimagined for New York? in volume 36 of the Cardozo Arts & Entertainment Law Journal (2018). Here is the abstract.

This essay is based on a featured lecture that I gave as part of the Cardozo Arts & Entertainment Law Journal’s 2 symposium on a proposed right of publicity law in New York. The essay draws from my recent book, The Right of Publicity: Privacy Reimagined for a Public World, published by Harvard University Press. Insights from the book suggest that New York should not upend more than one hundred years of established privacy law in the state, nor jeopardize its citizens’ ownership over their own names, likenesses, and voices by replacing these privacy laws with a new and independent right of publicity law, at least not the versions thus far proposed. The essay begins by busting a host of myths about the development of privacy law in New York and across the nation. The tort-based right of privacy was, and remains, the original right of publicity, and was even referred to as a right to stop “unwarranted publicity.” Privacy laws, from the beginning, protected the famous and anonymous alike, and allowed for recovery of economic and business damages, as well as of emotional distress and reputational harms. In the essay, I debunk the common, albeit erroneous, claim that the right of publicity was created in 1953 by the Second Circuit Court of Appeals in Haelan Labs. v. Topps Chewing Gum. Instead, the turn to a transferable and independent (of privacy) right of publicity actually occurred later, and was driven in part by Hollywood lawyers and heirs of celebrities who saw the advantages of a transferable property right in a person’s identity. Such a shift, however, is often at the expense of the very individuals the right of publicity is supposed to protect. The essay concludes with some recommendations for New York, and for right of publicity and privacy laws more generally.

Download the article from SSRN at the link.

July 26, 2018 | Permalink

Shaw on Speech, Intent, and the President @CornellLaw

Katherine Shaw, Cardozo School of Law, is publishing Speech, Intent, and the President in volume 104 of the Cornell Law Review. Here is the abstract.

Judicial inquiries into official intent are a familiar feature of the legal landscape. Across various bodies of constitutional and public law — from equal protection and due process to the first amendment’s free exercise and establishment clauses, from the eighth amendment to the dormant commerce clause, and in statutory interpretation and administrative law cases across a range of domains — assessments of the intent of government actors are ubiquitous in our law. But whose intent matters to courts evaluating the meaning or lawfulness of government action? When it comes to statutes, forests have been felled debating the place of legislative intent. But, although the government conduct subject to challenge is frequently action by executive branch officials, no coherent body of work attends in the same way to the role of intent and the executive — either its function across bodies of law, or the means by which it is established. The novel rhetorical habits and strategies of President Donald Trump have already thrust questions of presidential intent into the spotlight in high-stakes ongoing litigation, including over the President’s “travel ban” orders. Courts evaluating the lawfulness of those orders have wrestled with what weight to accord the President’s statements, both from the campaign and following inauguration, with no real guiding principles regarding the significance of presidential statements, their relationship to presidential intent, or the relevance of intent in challenges to presidential action. These cases — and a number of others ongoing at the time of this writing — highlight the absence of any coherent conceptual framework for assessing both presidential speech and presidential intent. This Article attempts to fill that gap.

Download the article from SSRN at the link.

July 26, 2018 | Permalink

Monday, July 23, 2018

Wiener on Constitutional Legitimacy of Media Law and Policy in the 21st Century @AsafWien

Asaf Wiener, Tel Aviv Faculty of Law, has published Constitutional Legitimacy of Media Law and Policy in the 21st Century: Bridging the Ideological Divide of Free Speech Jurisprudence. Here is the abstract.

This Paper aims to supply policymakers and judicial review with an ideological-neutral framework for evaluating the legitimacy of imposing public-interest duties on today's dominant forms of mass media, such as Netflix, YouTube or Facebook. In contrast to the current literature, which often advocates for adopting either a libertarian or a distributive position about communication policy and free speech jurisprudence, the paper suggests that both would benefit from a plural, fact-based methods of review for understanding and evaluating the various sources of legitimacy with regard to both 'old' and 'new' media regulation. The first part of the Paper begins by adopting a socio-historical perspective to taxonomize the consensual sources for legitimizing media regulation within the public interest framework. By unraveling the various rationales and justification, it further it examines their theoretical and practical applicability to contemporary debates about the constitutional permissibility of regulating Internet-based content providers and platforms. The second Chapter suggests that although both utilitarian-economic and egalitarian-democratic reasons for traditional media regulation can generally be applied to new forms of commercial media, free speech jurisprudence lacks sufficient consensus about the conditions for legitimacy and suffer from two primary flaws: (a) lack of rationality or basis in social facts; and (b) lack of sensitivity to the hidden costs of media regulation within the public interest framework (liberty and equality compromise diversity; liberty and diversity compromise equality; equality and diversity compromise liberty). In response, this Paper bridges today's ideological divides – over media regulation and free speech jurisprudence alike – by suggesting common grounds for instrumental review of media law and policy, which both libertarian and egalitarian ends of the post-liberal spectrum can agree on.

Download the article from SSRN at the link.

July 23, 2018 | Permalink

Haan on The Post-Truth First Amendment @shaan_haan

Sarah Haan, Washington & Lee School of Law, is publishing The Post-Truth First Amendment in volume 94 of the Indiana Law Journal (2018). Here is the abstract.

Post-truthism is widely understood as a political problem. In this Article, I argue that post-truthism also presents a constitutional law problem—not a hypothetical concern, but a current influence on First Amendment law. Post-truthism, which teaches that evidence-based reasoning lacks value, offers a normative framework for regulating information. Although post-truthism has become a popular culture trope, I argue that we should take it seriously as a theory of decision making and information use, and as a basis for law. This Article uses the example of compelled speech to explore how post-truth rhetoric and values are being integrated into law. When the State compels speech, it pits the interests of speakers, mostly organizational actors with informational advantages, against those of listeners—mainly information end-users such as consumers, investors, and citizens. Because, increasingly, compelled speech law sets the ground rules for this political conflict between information-haves and information have-nots, it is fertile ground for post-truth ideas. It is therefore unsurprising to find compelled speech doctrines easing and restricting the flow of disclosures in ways that conform to post-truth ideas about what sorts of information people should use to make decisions. An example is the Zauderer doctrine, which calls for lax scrutiny of laws mandating disclosure of “uncontroversial” commercial information, and higher scrutiny of laws mandating disclosure of “controversial” information. Another is the government-filtering preference—a claim that, in compelled-speech cases, the State, not a private actor, must communicate particularly sensitive private-actor disclosures to the public. The Supreme Court endorsed both of these in its most recent compelled speech case, NIFLA v. Becerra. I show that controversiality tests and government-filtering preferences subvert core First Amendment principles and, by cutting off access to information or reducing its credibility, contribute to a post-truth information economy, in which the public’s ability to engage in truth-seeking, self-fulfillment, and self-government is constrained by its inability to obtain useful, trustworthy information at all.

Download the article from SSRN at the link.

July 23, 2018 | Permalink

Hilty and Moscon on Permitted Uses in Copyright Law: Is There Need for an International Instrument?

Reto Hilty and Valentina Moscon, both of the Max Planck Institute for Innovation and Competition, are publishing Permitted Uses in Copyright Law - Is There Need for an International Instrument?, a Draft Chapter in Comparative Aspects of Limitations and Exceptions in Copyright Law (H. Sun, S. Balganesh, W.-L. Ng-Loy, eds, Cambridge: Cambridge University Press, 2018) (Forthcoming). Here is the abstract.

As a follow-up project to the “Declaration on a Balanced Interpretation of the Three-Step Test” (2008), the Max Planck Institute for Innovation and Competition has coordinated an international group of world-renowned copyright experts to produce a legal instrument (possibly in the form of an international agreement) containing a nucleus of indispensable copyright-permitted uses that States should be obliged to implement in their legislations. With the purpose of counterbalancing the current international trend in copyright law, characterised by its “minimal protection approach”, concrete provisions and extended explanatory notes are provided to foster a “minimal limitation approach”.

Download the chapter from SSRN at the link.

July 23, 2018 | Permalink

Friday, July 20, 2018

Lichtman and Nyblade on Filtering Films: An Empirical Study of What Consumers Would Mute and Excise from Hollywood Fare If Only They Could @UCLA_Law

Douglas Lichtman and Benjaman Nyblade, both of UCLA School of Law, have published Filtering Films: An Empirical Study of What Consumers Would Mute and Excise from Hollywood Fare if Only They Could. Here is the abstract.

In 2016, the technology startup VidAngel offered a movie streaming service that empowered users to mute potentially offensive audio and cut potentially offensive video from Hollywood films. Copyright litigation forced VidAngel’s service offline in December of that year. But, in the preceding eleven-and-a-half months, VidAngel managed to transmit roughly four million filtered streams and, for each of them, to record not only which filters were applied, but also how many minutes of the resulting film each user then watched. In this Article, we use the VidAngel data to study the market for filtered motion picture content. Among our findings are that video filters are primarily used to filter scenes involving intimacy, rather than those related to violence; and that, while the most common filtered audio is the word “f*ck,” users are even more likely to mute the words “Christ” and “dink.” Overall, even the most cautious viewers use filters as scalpels, not sledgehammers, muting and excising only a tiny fraction of a film’s content. And, perhaps most surprisingly, despite the imperfections inevitably introduced by unscripted interruptions in a movie’s audio and video presentation, users who watch filtered films turn out to enjoy them to roughly the same degree as do users who watch the corresponding unedited originals.

Download the article from SSRN at the link.

July 20, 2018 | Permalink

Thursday, July 19, 2018

Wimmer on Whether the GDPR Can Reach U.S. Publishers @kurtwimmer

Kurt Wimmer, Covington & Burling LLP, is publishing Free Expression and EU Privacy Regulation: Can the GDPR Reach U.S. Publishers? in volume 68 of the Syracuse Law Review (2018). Here is the abstract.

The question of whether distant law should apply to online publishers has taken on new immediacy because of a new European Union (EU) privacy law, the General Data Protection Regulation (GDPR). The GDPR is a sea-change in EU privacy law, and companies operating outside of the borders of Europe are grappling with whether this stringent new regulation will apply to them. Under pre-GDPR law, publishers outside of the EU could structure their activities to avoid EU jurisdiction. The GDPR, however, aspires to a broad jurisdictional reach, and it is intended to cover any in the world with an online presence that markets “goods or services” to Europeans or “monitors the behavior” of EU data subjects. Just because the GDPR aspires to this jurisdictional breadth, however, does not mean that it is permissible. Longstanding rules of public international law must be satisfied before regulatory agencies and courts can exercise extraterritorial jurisdiction. This article analyzes those principles and concludes that non-EU publishers will have persuasive arguments against the jurisdiction of EU regulatory authorities and courts to enter orders against them, and a strong argument against the enforcement of such orders or subsequent fines.

Download the article from SSRN at the link.

July 19, 2018 | Permalink

Wednesday, July 18, 2018

Messenger on Rethinking the Right of Publicity in the Context of Social Media @ashmessesq @NPR

Ashley Messenger, American University, has published Rethinking the Right of Publicity in the Context of Social Media. Here is the abstract.

This paper, inspired by a tweet by Chevy (the maker of Corvette) after Prince's death in 2016, explores whether current case law on the right of publicity provides helpful guidance for corporate speakers when the speech refers to a person. In particular, the article looks at the relationship between "commercial use" of a person's name or likeness and the "commercial speech" doctrine; evaluates the ways corporations speak via social media; and suggests ways to think about corporate social media messages to protection speech that otherwise would be protected by the First Amendment.

Download the article from SSRN at the link.

July 18, 2018 | Permalink

Keller on Whether the Right of Publicity and/or Privacy Can Protect Those Killed Extralegally From (Internet) Infamy

Deidre A. Keller, Ohio Northern University College of Law, has published Will I Be the Next Hashtag: Can the Right of Publicity and/or Privacy Protect Those Killed Extralegally from (Internet) Infamy? Here is the abstract.

Social media has become an important site for organizing and resistance in the 21st Century. But, what happens when the family of a child killed by police wishes to keep that child’s name from becoming the next viral hashtag? The 2017 death of Jordan Edwards at the hands of a Balch Spring, Texas police officer begs precisely this question. Jordan is, of course, one of many black boys killed extralegally, the most famous of whom is, perhaps, Emmett Till. At Emmett’s funeral his mother, Mamie Till, made the extraordinary decision to have her son’s casket open so that the world could see what the lynch mob had done to him. This decision has been hailed as heroic and instrumental in the nascent Civil Rights’ Movement. Not incidentally, the photographs taken of Emmett’s badly mangled face were recently at the center of a controversy in which a white artist utilized those images to create a painting that hung in the Whitney Museum. That controversy begs the same question presented by Jordan Edwards’ family’s choice to not immediately offer their son up as a martyr: what in the law might the family use to protect their slain child’s name and likeness from unauthorized use? The mechanisms ordinarily utilized to protect against unauthorized uses of names and likenesses are the right of publicity and the right to privacy. In this article, I’ll consider whether these mechanisms are up to the task of enforcing the wishes of Jordan Edward’s family or the next family that finds itself seeking privacy and dignity in the wake of horrible tragedy.

The full text is not available from SSRN.

July 18, 2018 | Permalink

Tuesday, July 17, 2018

FCC Commissioner O'Rielly's Statement on the Sinclair/Tribune HDO

FCC Commissioner Michael O'Rielly's statement on the Sinclair/Tribune Hearing Designation Order (HDO). 

July 17, 2018 | Permalink

Guibault on Intellectual Property and Culture @LGuibault @SchulichLaw

Lucie Guibault, Schulich School of Law, is publishing Intellectual Property and Culture in in A. Kamperman-Sanders, A. Ramalho, C. Mulder, Anke Moerland - Dahrendorf (eds.), Introduction to Intellectual Property and Knowledge Management, Univ. Maastricht (A. Kamperman-Sanders, A. Ramalho, C. Mulder, and Anke Moerland-Dahrendorf, eds., University of Maastricht, 2018 (forthcoming)). Here is the abstract.

This paper takes a critical look at the interaction between intellectual property law and culture using three examples, namely: 1) the need to preserve and disseminate culture, through the recognition of cultural heritage institutions' vital role in society; 2) the need to maintain culture from depreciation, through the safeguard of a strong public domain; and 3) the need to let culture evolve, through the protection of Traditional Cultural Expressions (TCE's). This brief study shows that, although IP rights can be said to afford useful protection to objects of culture – taken in the narrow sense of ‘culture’, they can also prove to be inappropriate for preserving and promoting culture or cultural diversity – taken the broader sense of the word, either because they are too rigid, last too long, or are ill-suited for the intended object of protection. As a result, a serious mismatch occurs between the private appropriation of objects of culture through IP rights and the full implementation of public policy objectives towards the protection and promotion of culture and cultural diversity.

Download the essay from SSRN at the link.

July 17, 2018 | Permalink

Law, Borders, and Speech Conference: Proceedings and Materials 2018

Law, Borders, and Speech Conference: Proceedings and Materials (2017). Here is the abstract.

Tensions between national law and the Internet’s global architecture have existed since the network’s earliest days. They took on new urgency in recent years, with developments like French regulators’ efforts to globally enforce “Right to Be Forgotten” laws. New cases, technologies, and platform responses seem to come along every few months. Expert-level discussion of these issues is dynamic and fast-moving -- but the written literature is only starting to catch up. This volume contributes to that literature by capturing insights from the Stanford Center for Internet and Society’s Law, Borders, and Speech conference. The event honored the twentieth anniversary of David G. Post and David R. Johnson’s seminal Law and Borders article in the Stanford Law Review. It convened what one panelist called “the best folks on the subject in the country -- or probably the world,” from government, industry, civil society, and more. Vibrant discussion covered questions including * When should one country’s laws control speech and access to information around the world? * If the most meaningful ‘laws’ governing online speech are the ones made by private platforms, what does that mean for national governments and the rule of law? * Should Internet platforms use technical means to block countries where their services, or information posted by their users, violate national law? Should the answer depend on the country, the technology, or the law at issue? * How might these answers differ for specific areas of law, ranging from intellectual property to human rights? The Conference proceedings volume includes overviews of each panel from the public session of the Conference. Appended resources include links to key cases, a glossary of current blocking technologies, and a write-up of hypothetical scenarios for group discussion. The panel write-ups capture some of the most sophisticated thinking on current issues, ranging from the role of geoblocking technologies to the intersection of state and private power in regulating user behavior on platforms like Google or Facebook. The material is licensed under the Creative Commons CC-BY license. We hope it will be a valuable in prompting further conversations and innovative thinking about these challenging and rapidly evolving issues.

Download the materials from SSRN at the link.

July 17, 2018 | Permalink

Thursday, July 12, 2018

Quintais on Untangling the Hyperlinking Web: In Search of the Online Right of Communication to the Public @JPQuintais

João Quintais, University of Amsterdam, Institute for Information Law, has published Untangling the Hyperlinking Web: In Search of the Online Right of Communication to the Public at 2018 J. World Intellectual Prop. 1. Here is the abstract.

This article examines the online right of communication to the public under EUlaw and its interpretation by the Court of Justice of the EU. The focus of the analysis is on the controversial application of the right to hyperlinking, and its implications for the online activities of users and intermediaries. After outlining the international and EU legal framework on the right of communication to the public, the article advances a conceptual framework for the interpretation of the exclusive right in the online environment, which is both based on, and attempts to bring coherence to, the Court's complex case law. On this basis, the article then explores and critically assesses the main areas of legal uncertainty for the online application of the right and the normative considerations at stake—especially fundamental rights and the promotion of technological development—offering interpretative and legislative solutions for their resolution. The article argues for abandoning the legislative proposals for a new right for press publishers and the so-called value gap, as both are fundamentally flawed. Instead, reform should focus on redefining the right of communication to the public and preserving safe harbors, especially for hosting providers.

Download the article from SSRN at the link.

July 12, 2018 | Permalink

Monday, July 9, 2018

Pollicino on Fake News, Internet [,] and Metaphors

Oreste Pollicino, Bocconi University Department of Law is publishing Fake News, Internet and Metaphors (to Be Handled Carefully) in Rivista di diritto dei media, 2017. Here is the abstract.

The metaphor of the free marketplace of ideas is frequently referred to as a crucial argument to support a liberal view of freedom of speech and contrast the enforcement of measures aimed at preventing fake news. This metaphor is subject to critical remarks for three different reasons. First of all, whilst it may be the case that the problem of scarcity of technical resources does not affect the Internet, our attention and time continue to be scarce “products”. Secondly, it is reasonable to ask whether the marketplace of ideas metaphor is well suited to the scope (and limits) of protection for free speech under the European constitutionalism paradigm. Thirdly, metaphorical language fits in very well with legal reasoning, but it should be handled properly (and with care).

Download the article from SSRN at the link.

July 9, 2018 | Permalink

Simmons and Means on Constructing a Coherent Right of Publicity Statute @Kirland_Ellis

Joshua L. Simmons and Miranda Means, both of Kirkland & Ellis, have published Split Personality: Constructing a Coherent Right of Publicity Statute, at 10 Landslade (May-June, 2018). Here is the abstract.

The right of publicity is a growing battleground, on which rights holders on the one hand (typically public figures and actors) and content creators and service providers on the other (typically media companies and Internet companies) clash. This right of publicity battle takes place against the backdrop of a theoretically inconsistent and unpredictable legal landscape. In enacting right of publicity statutes, commentators have noted that many states struggled to adopt a strong, consistent theory of why the right exists and what it should be designed to protect. In some states, this failure has resulted in a kind of cognitive dissonance, such as when the right of publicity is called both a “privacy right” (neither descendible nor transferable) and a “property right” (both descendible and transferable), often interchangeably. Other states have avoided planting a flag in one theory or another by defining the right of publicity broadly, and then scaling it back based on various exceptions. As Eric Johnson notes in his recent essay, “Disentangling the Right of Publicity,” such statutes define the right by “saying what the right of publicity is not.” Given this situation, one would wonder whether legislation could be drafted that would avoid the pitfalls of current right of publicity statutes, and potentially bridge the gap between the parties at odds in the debate. But, given that the right of publicity is controversial, could consensus be reached? What elements would a uniform statute likely contain? What issues would it need to address? To understand how future legislation might be structured, it is important first to recognize how right of publicity statutes are structured today. To further this analysis, this article walks through both the theoretical underpinnings of the right of publicity and the elements that typically are included in right of publicity statutes.

Download the article from SSRN at the link.

July 9, 2018 | Permalink

Thursday, July 5, 2018

Postdoc Available: Programme in Comparative Media Law and Policy (PCMLP) @Oxford_MediaLaw

Via Matt Stahl, Associate Professor, University of Western Ontario

There is an  postdoc job opportunity at the Programme in Comparative
Media Law and Policy (PCMLP) for a 3 year post-doc.  This is an open
fellowship so come with good ideas and research projects. And despite
the title of the fellowship you don't have to be a lawyer. Must be
within 4 years of having completed a PhD. Deadline is July 25th.

http://pcmlp.socleg.ox.ac.uk/2018/07/new-position-postdoc-in-media-law-and
-policy/
<http://pcmlp.socleg.ox.ac.uk/2018/07/new-position-postdoc-in-media-law-an
d-policy/
>

-----

Career Development Postdoctoral Fellowship in Media Law and Policy

Grade 7: £31,604 - £38,833 p.a.

The Fellow will undertake advanced research in the field of media law
and policy, present their findings at conferences and workshops, and
publish their research. The postholder will be permitted to undertake a
small amount of lecturing and/or tutorial teaching, which may not exceed
three hours per week.

The postholder will be a part of the Programme in Comparative Media Law
and Policy (PCMLP) and expected to contribute to its activities. The
Head of the PCMLP is Dr Nicole Stremlau. Further information about the
programme can be found on the PCMLP website.

Applicants must hold, or be close to completing a PhD/DPhil in Law, or a
related discipline, with reference to media/socio-legal issues
(candidates who already hold a doctorate will only be eligible if the
doctorate was awarded within four years of the closing date for this
position. Exceptions to this requirement will only be made for
candidates who can demonstrate that they are still at an early stage in
their academic career by reason of having taken a career break (e.g. for
maternity leave, parental leave, illness or other personal
circumstances); engage in high quality research; have the ability to
manage their own academic research and associated activities; and play a
full role in the intellectual life of PCMLP, the CSLS, and the Faculty
of Law.

The Fellowship is for a fixed-term of 3 years, to commence as soon as
possible.

The postholder will be based at The Centre for Socio-Legal Studies,
Manor Road Building, Manor Road and will be eligible to apply to the
Faculty¹s Research Support Fund.

You will be required to upload a CV and supporting statement as part of
your online application.

The closing date for applications is 12.00 midday on Wednesday 25 July
2018. Interviews will be held on Tuesday 21 August 2018.

July 5, 2018 | Permalink