Friday, June 29, 2007
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.
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.
Thursday, June 28, 2007
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.
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.
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.
Wednesday, June 27, 2007
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.
Tuesday, June 26, 2007
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.
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.
Sunday, June 24, 2007
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.
Friday, June 22, 2007
Heather Mills McCartney testified yesterday that a photographer assaulted her in a subway last year by "grabbing" her and turning her around so that he could get a photo of her. She testified that at the time she was trying to escape other journalists who were trying to get photos of her. However, the defendant's attorney suggested that the journalist's series of photographs, all timestamped and dated and introduced into evidence, did not allow for the sequence of events that Ms. Mills McCartney alleged. The photographer, Jay Kaycappa, is standing trial for the assault in Brighton. Read more here in a story in the Evening Standard.
Thursday, June 21, 2007
Pennsylvania Supreme Court: Media Has Right To Names, But Not Addresses, Of Jurors in Criminal Trial
The Supreme Court of Pennsylvania has decided that, in order to ensure openness, the press has the right to obtain the names of jurors in a criminal trial, but not their addresses. "we believe that revealing impaneled jurors’ names is sufficient. Openness is fostered by the public knowledge of who is on the impaneled jury. Armed with such knowledge, the public can confirm the impartiality of the jury, which acts as an additional check upon the prosecutorial and judicial process....Similarly, prospective jurors would be less inclined to lie during voir dire “by inducing the fear of exposure of subsequent falsities through disclosure by informed persons who may chance to be present or to hear of the testimony from others present.” ...Accordingly, disclosing jurors’ names allows the public to participate in the judicial process and furthers the fairness and the appearance of fairness of the criminal trial, since the public can confirm the impartiality of the proceedings and the prospective jurors are more likely to tell the truth....On the other hand, disclosing jurors’ addresses is not a constitutional imperative. Revealing jurors’ names is sufficient for the public to determine the identity of the jurors’ and to provide an additional check on ensuring the impartiality of the jury. Disclosure of jurors’ addresses does not advance these important functions, but merely makes these functions easier. The First Amendment is not a rule of convenience. Indeed, disclosing jurors’ addresses may ultimately hamper the operation of the jury system as a whole. Turning to the need to encourage jury service, all of the important functions served by the jury are meaningless unless there are twelve qualified citizens willing to serve as jurors. The average citizen has expressed discomfort at the prospect of being harassed by the press during or after the case is over....Similarly, jurors have expressed fear of physical harm related to serving on criminal juries....Either of these factors may make the average citizen less willing to serve on a jury, especially if he or she believes that the media, the defendant, or the defendant’s family and friends know where he or she lives. Taking in mind the tradition of accessibility, as well as the competing values of openness versus the promotion of jury service, the conclusion is inescapable. We believe the First Amendment provides a qualified right of access to jurors’ names, but not addresses."
The case is Commonwealth v. Long (J-15A&B-2006), decided May 31, 2007).
Adam Thierer, Progress & Freedom Foundation, has published "The RIght Way to Regulate Violent TV." Here is the abstract.
Use of the wide variety of available technological controls, household media rules and other private sector efforts are a much better alternative to government regulation to address concerns about children's exposure to violence on television. Lawmakers should be wary of policies that could be struck down in court as unconstitutional, considering recent decisions that have ruled in favor of a least restrictive alternative and away from broad, government-imposed censorship.
Numerous tools and methods, both technical and non-technical, which can be used to control what media content children are exposed to in the home, include private ratings systems, V-chips, personal video recorders, controls provided by cable and satellite providers, and formal or informal household media consumption rules.
Concerned parents and others can work with third parties to gather information and even work within the media marketplace to influence what fare is shown on broadcast and cable television, by making use of ratings and reviews provided by independent organizations and the many educational efforts aimed at teaching adults about parental controls available for all types of media, including television, movies and games.
But if, for whatever reason, some parents are not taking advantage of these tools and options, their inaction should not be used to justify government regulation of programming as a surrogate for household/parental choice.
Download the entire article from SSRN here.
Wednesday, June 20, 2007
Christina Applegate's new fall series was originally called "Sam I Am," but has changed its name to "Samantha Be Good," not quite so catchy, but also not quite so likely to catch a lawsuit from Dr. Seuss Enterprises, holders of the rights to the famous book Green Eggs and Ham, in which the character Sam-I-Am appears. Attorneys for the company sent out a cease-and-desist notice, they claim, to protect the brand. Read more here in a San Jose Mercury News story and in a Variety story here.
Tuesday, June 19, 2007
In Thomas v. Telegraph Publishing, the New Hampshire Supreme Court has held that "[t]o justify applying the doctrine, the evidence of record must show not only that the plaintiff engaged in criminal or anti-social behavior in the past, but also that his activities were widely reported to the public. The evidence on the nature of the conduct, the number of offenses, and the degree and range of publicity received must make it clear, as a matter of law, that the plaintiff's reputation could not have suffered from the publication of the false and libelous statement." The plaintiff had alleged that an article in the Nashua Telegraph had defamed him by printing that he "“is suspected in more than 1,000 home burglaries in Massachusetts and New Hampshire since the mid-1970's, according to police and court records.” Read the entire ruling here. The case is Thomas v. Telegraph Publishing, 35 Med. L. Rptr. 1769 (2007).
Monday, June 18, 2007
The BBC has released a report criticizing programs, including some popular BBC shows, and suggesting that it may have violated guidelines concerning content and point of view. Among the programs singled out for criticism was the comedy "The Vicar of Dibley", which starred Dawn French. Said the report writers, "2005 began with an edition of The Vicar of Dibley on BBC One on New Year’s Day. Make Poverty History formally launched its campaign to coincide with this transmission. The episode, ‘Happy New Year’, featured a storyline about Geraldine’s keenness to ‘make extreme poverty history for ever’. After her crusade has been mocked by her parishioners, she finally gathers them round her laptop to look at campaign material on the internet. The Make Poverty History website is clearly shown, and she then plays them a Make Poverty History video which runs full screen, without any other dialogue, for one minute 24 seconds. Having earlier handed round white armbands (a Make Poverty History campaign accessory), she ends the programme by turning round to find they have all put one on, in thrall to the video’s message. And then, in place of the normal credits, the signature tune accompanies unsmiling portraits of each cast member wearing the armband – an unspoken appeal for audience support. Nowhere did the BBC acknowledge that the scriptwriter, Richard Curtis, was himself spearheading the Make Poverty History campaign. The implication was that the cause was universal and uncontroversial, whereas the Make Poverty History website made clear that it had contentious political goals. One view was that this was a laudable attempt to use the BBC’s most popular comedy show to harness public interest for a worthwhile cause. Another (admittedly less widespread) was that the unsuspecting comedy audience had been ambushed."
The writers continued with analysis of more instances in which the propounders of the Make Poverty History campaign manifested an agenda in other BBC programs. Read the entire report and appendices here. Read an article about the report here.
Friday, June 15, 2007
The government has decided that a federal marshal should not have acted to seize tape recordings made by two reporters of Justice Antonin Scalia's remarks at a 2004 event. The original investigation of the incident ended in a ruling that the marshal did nothing wrong, but after the Associated Press and the Hattiesburg American sued, the Marshals Service re-evaluated its actions and has announced a new policy, which limits federal marshal responsibility to the protection of "federal judicial officers". Justice Scalia later sent apologies to the two reporters involved. Read more here. Here's a New York Times article by Adam Liptak written at the time of the incident.
Thursday, June 14, 2007
Jesse Morrison, who up until this Monday worked at a Memphis area movie theater as a projectionist, has apparently lost his job over the review he wrote of the film Fantastic Four: Rise of the Silver Surfer. Mr. Morrison reviews films for the site www.aintitcool.com. Mr. Morrison's review, written under his pen name Memflix, was rather negative. He thinks it raised the hackles of someone at Fox, who contacted his employer. The movie theater's ownership says that's not the reason, however: it's simply that Mr. Morrison wrote a review "in advance", and Fox brass pointed this fact out. Read more here in a Hollywood Reporter story at CNN.com.