Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, November 28, 2016

MGM Goes To Court To Clear Rights For "Buckaroo Bonzai" TV Series

MGM has filed a lawsuit against Earl MacRauch and Walter Richter, the writer and director, respectively, of the 1984 The Adventures of Buckaroo Banzai Across the 8th Dimension, in order to proceed with a television series using the characters.  The studio asserts that it owns copyright in the characters and is asking a court to clear the way for it to move ahead with it tv deal. More here from the Hollywood Reporter. 

 

Link to the complaint here, via THR.

 

November 28, 2016 | Permalink

Sunday, November 27, 2016

What English Words Are Most Offensive? The UK Public Responds To an Ofcom Survey

Ofcom, the UK's communications watchdog agency, has surveyed the UK public to find out its views on the most offensive English words around and has published the results. The survey is part of a larger body of research concerning the public's attitudes toward potentially offensive language and gestures on television and radio. Here's a link to the report.

November 27, 2016 | Permalink

Wednesday, November 23, 2016

Husovec @Hutko on Intellectual Property Rights and Integration By Conflict: The Past, Present, and Future

Martin Husovec, Tilburg Law and Economics Center (TILEC); Tilburg University Institute for Law, Technology, and Society (TILT); Stanford University Law School Center for Internet and Society, has published Intellectual Property Rights and Integration by Conflict: The Past, Present and Future at 18 Cambridge Yearbook of European Legal Studies 239 (2016). Here is the abstract.

This paper analyses how the Court of Justice of the European Union resolves conflicting situations surrounding intellectual property rights (IPR). More specifically, it looks into how it approaches clashes of IPR with other fundamental rights and economic freedoms and with what consequences. Building upon previous literature, I advance the argument that the resolution of the conflict, by means of the proportionality interest-balancing exercise, pursues a pro-harmonisation agenda not only in the obvious context of free movement, but also in the setting of fundamental rights. I show that the recent Coty Germany ruling is likely to accelerate this trend because of its recognition of positive obligations of the Member States in the context of fundamental rights. It is argued that this could also be used by national courts to improve an existing IPR framework, in particular by filing preliminary references that question legislators’ choices such as non-implementation of permissible exceptions and limitations. After highlighting the importance of maintaining a separation between different policy levels (secondary law vs Charter), I outline why Coty Germany is a very worrying reading of Article 17(2) of the EU Charter, and suggest that this could be remedied by synchronising its interpretation with the Court’s doctrine of ‘specific subject matter’ in the context of free movement.
The full text is not available from SSRN.

November 23, 2016 | Permalink

Tuesday, November 22, 2016

Hoernle and Carran on Gambling Advertising and Protection of the Vulnerable in the UK

Julia Hoernle, Queen Mary University, London, School of Law, and Margaret Carran, City Law School, City University, London, have published A Sieve that Does Hold a Little Water – Gambling Advertising and Protection of the Vulnerable in the UK. Here is the abstract.

This article reviews the regulation of gambling advertising and argues that the restrictions imposed by the largely self-regulatory system only have limited effect. We compare the regulation of gambling advertising, by way of analogy, to a sieve that does hold only a little water. The article analyses the law against the third statutory objective considering the existing research literature on the impact of advertising on problem gambling. The article points to gaps in the protection of children and vulnerable persons and argues that the law should focus more on them. It concludes that currently the law focuses too much on the communicative intent of the advertiser and not sufficiently on the impact of advertising on the vulnerable and the lack of regulation of the online space. It makes recommendations as to how the law in the UK should change.

Download the article from SSRN at the link.

November 22, 2016 | Permalink

Seipel on How the Press Violates the NLRA: The Social Media Policies of News Companies

Matthew Seipel, UCLA School of Law, has published How the Press Violates the NLRA: The Social Media Policies of News Companies. Here is the abstract.

When does a news company’s social media rule violate the NLRA? This Article intends to answer that question. I investigated the social media policies of six well-known news companies looking for NLRA violations. And I think I found some. This Article lays out my findings.

Download the article from SSRN at the link.

November 22, 2016 | Permalink

Monday, November 21, 2016

Rimmer @DrRimmer on The Washington Redskins, Offensive Trademarks, Freedom of Speech, and Racism in Sport

Matthew Rimmer, Queensland University of Technology, has published Change the Mascot: The Washington Redskins, Offensive Trade Marks, Freedom of Speech and Racism in Sport at 29 Australian Intellectual Property Law Bulletin 178 (2016). Here is the abstract.

There has been a long history of conflict and disputation in respect of Indigenous Intellectual Property. In the United States, there has often been controversy over representations of Native Americans in trademark law. There has been intensive public and legal debate over offensive trademarks, such as the Washington Redskins. The Navajo activist Amanda Blackhorse has led a campaign to cancel the trademarks of the Washington Football team – the Washington Redskins. She observed: "This is such a huge victory not only for, you know, our group, but for Native Americans all over the nation…. The cancellation of the trademark does not mean that the team has to change their name. Our biggest thing with this is that, you know, their name, the “R” word, does not deserve federal protection. We don’t think that Dan Snyder and the co-owners should make money off of a racial slur, especially a racial slur directed at Native American people." In a study of the impact of native mascots and team names on American Indian and Alaska native youth, Erik Stigman and Victoria Phillips have documented how ‘these stereotypical representations are too often understood as factual representations and thus “contribute to the development of cultural biases and prejudices”’. Opponents to the trademark ran advertisements against the Washington Redskins as part of the ‘Change the Mascot’ campaign. This article previews the Supreme Court of the United States’ possible consideration of a dispute over offensive trademarks, freedom of speech, and racism in sport. It suggests that it would be worthwhile the Supreme Court of the United States to hear a combined case dealing with the question of offensive trademarks. It argues that that it is within the power of the United States Patent and Trademark Office to regulate offensive trademarks. Furthermore, it highlights the need for the United States Government to provide effective protection for Indigenous Intellectual Property. First, this piece considers the legal dispute in respect of the Washington Redskins trademarks. Second, it examines the parallel conflict dealing with The Slants trademarks. Finally, this study examines the political responses to the controversy over offensive trademarks in the United States Congress, the White House, and the Presidential race.

Download the article from SSRN at the link.

November 21, 2016 | Permalink

Friday, November 18, 2016

Marta Iljadica's New Book Copyright Beyond Law: Regulating Creativity in the Graffiti Subculture @martailj @hartpublishing

New from Hart Publishing: Marta Iljadica, Copyright Beyond Law: Regulating Creativity in the Graffiti Subculture (Hart Publishing, 2016). Here from the publisher's website is a description of the book's contents.

The form of graffiti writing on trains and walls is not accidental. Nor is its absence on cars and houses. Employing a particular style of letters, choosing which walls and trains to write on, copying another writer, altering or destroying another writer's work: these acts are regulated within the graffiti subculture. Copyright Beyond Law presents findings from empirical research undertaken into the graffiti subculture to show that graffiti writers informally regulate their creativity through a system of norms that are remarkably similar to copyright. The 'graffiti rules' and their copyright law parallels include: the requirement of writing letters (subject matter) and appropriate placement (public policy and morality exceptions for copyright subsistence and the enforcement of copyright), originality and the prohibition of copying (originality and infringement by reproduction), and the prohibition of damage to another writer's works (the moral right of integrity). The intersection between the 'graffiti rules' and copyright law sheds light on the creation of subculture-specific commons and the limits of copyright law in incentivising and regulating the production and location of creativity.

Media of Copyright Beyond Law

November 18, 2016 | Permalink

Tuesday, November 15, 2016

Randazza @marcorandazza On Being Cool and Informed About the Law on Filming Pornography In the U.S.

Marc J. Randazza, Randazza Legal Group, World Intellectual Property Organization (WIPO), and Università di Torino Faculty of Law, is publishing The Freedom to Film Pornography in volume 17 of the Nevada Law Journal (2016). Here is the abstract.
Repeat after me WITH FEELING: 1. "Pornography is not prostitution" 2. "It is legal to film porn everywhere in America" Now, download the article and read it so that you can learn why. You'll be smarter, and more interesting at parties. Some smarmy sanctimonious clown will think that surfing Reddit substitutes for three years of law school and a bar exam. They'll say "you know you can only film porn in California and New Hampshire." Then you can proclaim "oh yeah, well I read the complete study of this issue and you are WRONG." You'll be the coolest one at the party. All because you read this law review article about the First Amendment right to film pornography.
Download the article from SSRN at the link.

November 15, 2016 | Permalink

Monday, November 14, 2016

DJT and Libel Laws

Some views on whether libel laws could actually change under a Trump administration. From Sydney Ember (New York Times), Peter Stevenson (WaPo/The Fix), Jeff Horwitz (Associated Press, PBS), and Floyd Abrams (Hollywood Reporter).

November 14, 2016 | Permalink

Friday, November 11, 2016

Kaminski @MargotKaminski and Rub @Guy_A_Rub on Copyright's Framing Problem

Margot E. Kaminski, Ohio State University College of Law, and Yale University, Yale Information Society Project and Yale University Law School, and Guy A. Rub, Ohio State University College of Law, are publishing Copyright's Framing Problem in volume 64 of the UCLA Law Review (2017). Here is the abstract.

Copyright law has a framing problem. The problem is pervasive, unresolved, and often unnoticed, and it significantly impacts the nature and scope of copyright protection. Copyrighted works are complex: books consist of chapters, newspapers consist of articles, and so on. Courts often need to decide whether to frame the work as one comprehensive whole, an approach we call “zooming out,” or to frame it as a combination of many small parts, an approach we call “zooming in.” This framing move occurs across many copyright doctrines: in fair use, infringement analysis, statutory damages calculations, separability determination, and more. This Article focuses on decisions heavily affected by a court’s framing choice. The results are troubling. The study of those decisions suggests that in the majority of cases, courts frame the work without noticing their framing move. When courts do explicitly reason their framing choices, they use factors that are normatively questionable and increasingly less effective in today’s digital world. Consequently, copyrighted works are framed in an inconsistent way both across copyright law doctrines and within each doctrine. In fact, there is almost no area of copyright law in which courts consistently frame copyrighted works. These variations in framing choices have costs. While these costs need to be acknowledged and addressed, we reject one intuitively appealing approach to addressing them. Copyright law, we show, should not provide a unified framing test, or unified definition of the “work,” across all its doctrines. Different areas of copyright law face different policy considerations. Sometimes the framing of the work itself may need to change, so that the policy balance behind copyright law can remain constant.

Download the article from SSRN at the link.

November 11, 2016 | Permalink

Thursday, November 10, 2016

Coors on Harmonization and Diversity: Trends and Challenges in European Sports Image Rights Law

Corinna Coors, University of West London Ealing Law School, is publishing Harmonisation and Diversity:  Trends and Challenges in European Sports Image Rights Law in Handbook on EU Sports Law (Jack Anderson, Richard Parrish, and Borja Garcia, eds.; Elgar, --) (Edward Elgar Research Handbooks in European Law). Here is the abstract.

This article highlights the recent trends and challenges of image rights protection in Europe, including the implications of Brexit on the protection of athletes against false endorsement. It is argued that the similarities between the treatments of image rights (recognising both economic and dignitary interests) may outweigh the existing traditional differences (the nature and justification for image rights) in the long term. It may be assumed that the law will tentatively recognise both economic and moral elements, helping to promote a more workable and enforceable harmonised international standard in this area.

Download the essay from SSRN at the link.

November 10, 2016 | Permalink

Wednesday, November 9, 2016

How Cable News Covered the 2016 Campaign

Early reaction to the ways in which cable news covered the 2016 campaigns, and what happens now. From the Hollywood Reporter.

November 9, 2016 | Permalink

Tuesday, November 8, 2016

Wiersma on Legal Incapacitation in Media Access Interdictions and the Internet

Chris Wiersman, Ghent University/Universiteit Gent, Department of Communication Sciences and Faculty of Law, has published Legal Incapacitation in Media Access Interdictions and the Internet. Here is the abstract.

In this paper I first situate the general norm in the Council of Europe countries on access to the internet by actors in the media in the context of key concerns related to the internet as a medium according to UNESCO’s Internet Study. Following on I provide analysis of media access to public events and places within the scope for protection according to recent sources from the Council of Europe’s political decision-making organs and the case-law of Human Rights Court. Further I delineate the scope for protection to digital free expression by a comparison of cases in the Netherlands on the internet as a means of access vis-à-vis a means of publication on social media and blogs. On this theme I focus on the particular motivations for protection of a wide-range of behavior related to the internet and specifics thereof in the parliamentary history of the Dutch law. Suggested by their wording, these political and judicial decisions limit the European Court’s general invocation of journalisms ethics when such is related to certain ‘increased protections’ to journalists. Some cases have - as instances of decisional law - given journalists/press the ‘benefit of the doubt’. I delineate how the Court has found the rights to seek, impart and receive up until recently, as well related to internet. Article 10 ECHR and other sources (eg. the Declarations and Recommendations of the decision-making organs of the Council of Europe) provide a scope for protection. We’re reminded that not only Article 10 defines what comes to the scope for protection, but also rights to observe protests (article 11 ECHR), eg. The case-law of the Netherlands has suggested that privacy intrusions are the most upcoming issue of media access in the field of communications and the internet. Injunctive relief with targeted, specifics for execution has been offered for certain heightened privacy protection. General laws on informational acts, such as beleaguering on the internet shouldn’t lead to denying a person of means of communication if no alternative, similar means are available. I relate the analysis finally to the question why we should define professionalism as an ongoing and timely issue. The definition attempted by the Court/Council of Europe according to different sources of international standards has been related to the concept of ‘responsible journalism’, but the European Court can be seen to use a too simple view of what sources constitute its test(s) in a case.

Download the article from SSRN at the link.

November 8, 2016 | Permalink

Dogan on Bullying and Opportunism in Trademark and Right of Publicity Law

Stacey L. Dogan, Boston University School of Law, is publishing Bullying and Opportunism in Trademark and Right-of-Publicity Law in volume 96 of the Boston University School of Law (2016). Here is the abstract.

Lawyers, scholars, and even Congress have lately expressed concern about so-called “trademark bullies” — trademark holders that assert tenuous legal claims against vulnerable defendants, who often capitulate rather than incurring the expense and uncertainty of litigation. At the same time, we’ve witnessed right-of-publicity claims for acts that never would have raised an eyebrow a few decades ago. Complaints about bullying and overreaching are largely anecdotal rather than empirical, so it’s hard to gauge the extent of the behavior and to measure its costs. But the fact that it has attracted so much attention suggests a perception, at least, that some rights-holders are asserting unreasonable claims and chilling legitimate conduct. This paper contends that certain structural and doctrinal features of trademark and right-of-publicity law enable and, in some cases, reward aggressive claiming. Although the two areas of law have different roots and distinct doctrinal formulations, they share some common features that may fuel grabby behavior by rights-holders. Given these structural and doctrinal features, it’s no wonder that rights-holders test the limits of their trademark and publicity rights in lawsuits, PTO practice, and cease-and-desist campaigns. Contrary to the oft-stated trope of trademark holders, they do not have to take aggressive positions against borderline conduct to avoid loss of their trademark rights. But they can obtain benefits from taking forceful positions, both in the immediate dispute and more generally. Whether we view them as bullies, opportunists, or rational profit-maximizers, rights-holders are responding to incentives and opportunities created by judges making substantive law. This is not to condone or excuse those who assert untenable claims. The reality, however, is that few of the claims that critics cite as trademark bullying are untenable, under today’s permissive standards for infringement and dilution. And the same goes for right-of-publicity claims, even in the context of expressive works. While we might hope for voluntary restraint by rights-holders, the only way to ensure such restraint is to clarify boundaries and alter incentives. Commentators have suggested a variety of tools for shifting these incentives, and this Essay brainstorms about some more.

Download the article from SSRN at the link.

November 8, 2016 | Permalink

Ramsey on a Free Speech Right To Trademark Protection?

Lisa P. Ramsey, University of San Diego School of Law, has published A Free Speech Right to Trademark Protection? at 106 Trademark Reporter 797 (2016). Here is the abstract.

This Article explores whether the right to freedom of expression requires governments to register trademarks that are immoral, scandalous, disparaging, or otherwise offensive. Many nations ban the registration of offensive marks, including the United States for the last 100 years. In the U.S. Federal Circuit’s 2015 en banc decision in In re Tam, which involved an appeal from the U.S. Patent and Trademark Office’s refusal to register the mark THE SLANTS for an Asian-American rock band, the court held the disparagement provision in Section 2(a) of the U.S. Lanham Act violated the Free Speech Clause in the First Amendment of the U.S. Constitution. The U.S. Supreme Court has now agreed to address the issue. This Article first contends that international law does not require U.S. and foreign courts to recognize a free speech right to trademark protection of offensive marks. It then argues that courts and commentators often do not raise and correctly evaluate all of the issues that may arise in a free expression challenge to a trademark law. The Article provides a framework–a list of “elements” required to establish a free speech violation–that can be used to evaluate whether a trademark law violates the right to freedom of expression in a nation’s constitution or human rights treaties. This framework is then applied to the provision in Section 2(a) of the U.S. Lanham Act banning registration of marks which are immoral or scandalous, or which may disparage others, with the resulting conclusion that Section 2(a) is co

Download the article from SSRN at the link.

November 8, 2016 | Permalink

Friday, November 4, 2016

Strasser on Incitement, Threats, and Constitutional Guarantees: First Amendment Protections Pre- and Post-Elonis

Mark Strasser, Capital University Law School, has published Incitement, Threats, and Constitutional Guarantees: First Amendment Protections Pre- and Post-Elonis at 14 University of New Hampshire Law Review 163 (2016). Here is the abstract.

The First Amendment‘s protection of free expression does not extend to true threats. In Elonis v. United States, the Court had a golden opportunity to clarify true threat jurisprudence, especially in light of the standards that must be met when the state seeks to punish other (possibly terrifying) language such as that involved in incitement. Regrettably, the Elonis Court not only made the jurisprudence murkier but also cast into doubt the mens rea requirements of other federal statutes. The Court has almost guaranteed confusion in the lower courts about a variety of matters and has failed to take advantage of a great opportunity to provide direction with respect to the regulation of internet postings.

The full text is not available from SSRN.

November 4, 2016 | Permalink

Harpur and Burdon on Workplace Laws and Workplace Rights Under the Fair Work Act 2009: What About Information Privacy?

Paul Harpur and Mark Burdon, both of the University of Queensland School of Law, have published Workplace Laws and Workplace Rights Under the Fair Work Act 2009 (Cth): What About Information Privacy? Here is the abstract.

Workplace Laws and Workplace Rights under the Fair Work Act 2009 (Cth): What about Information Privacy? Australian Labour Law Association, Eighth Biennial National Conference, Melbourne, 4 and 5 November 2016

The full text is not available for download from SSRN.

November 4, 2016 | Permalink

Thursday, November 3, 2016

Giblin @rgibli on the Role of Copyright

Rebecca Giblin, Monash University Faculty of Law, is publishing Is it Copyright's Role to Fill Houses with Books? in Intellectual Property and Regulation of the Internet: The Nexus with Human and Economic Development (Susy Frankel and Daniel Gervais, 2017). Here is the abstract.

Proposed copyright reforms are typically situated as being pro-user/anti-author (or vice versa). When it comes to making normative judgments about how far copyright rights ought to extend however, we need to ask more than whether a change might make one or another interest worse off. Since copyright isn't zero sum, we need to ask who loses *how much* in exchange for who gaining *what*. This is particularly important when considering normative questions relating to copyright's role in human and economic development, which are regaining urgency as the marginal cost of copying continues to drop for the world's least advantaged populations, increasing the deadweight loss attributable to copyright. This paper adapts a Rawlsian conception of the public interest to develop an objective framework that can enable more nuanced evaluation of the merits and demerits of global copyright policy proposals. By refocusing the debate from what is being won and lost by individual stakeholders towards the broader possibilities enabled by digital abundance, it shines fresh light on copyright's potential to help vulnerable people live a 'good life', lift populations out of poverty and stimulate fresh creation.

Download the essay from SSRN at the link.

November 3, 2016 | Permalink

Adeney on Differentiating Legal From Management Norms in Research Collaborations and "Authorship"

Elizabeth Adeney, Deakin University Law School, is publishing Research Collaborations and ‘Authorship’: Differentiating Legal from Management Norms in Australian Business Law Review, volume 44 (2016). Here is the abstract.

The question of who should take credit as the authors of collaborative research papers has long been a matter for discussion, especially within scientific institutions. However, that discussion has not sufficiently taken account of the legalities of the situation. Particularly since the passing of moral rights legislation in Australia and elsewhere, institutional norms are in conflict with the legal rules concerning the attribution of authorship. Yet, when researchers take their grievances to the courts, it is the legal rules that will prevail. The present article considers the institutional rules against their legal counterparts and the steps that have been, and might in future be, taken to manage this divergence of norms.

Download the article from SSRN at the link.

November 3, 2016 | Permalink

Wednesday, November 2, 2016

Gannett Abandons Purchase Of Tronc

Gannett has abandoned its proposed purchase of Tronc (the conglomerate which owns a number of newspapers including the Chicago Tribune and the Los Angeles Times). The deal began some months ago. Here's more from the Guardianhere from the New York Times.

November 2, 2016 | Permalink