Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, January 25, 2017

A New Book On Free Speech Protections For Art, Music, and Literature From Tushnet, Chen, and Blocher (NYU Press)

Forthcoming from New York University Press:

Mark V. Tushnet, Alan K. Chen, and Joseph Blocher, Free Speech Beyond Words: The Surprising Reach of the First Amendment (2017).


The Supreme Court has unanimously held that Jackson Pollock’s paintings, Arnold Schöenberg’s music, and Lewis Carroll’s poem “Jabberwocky” are “unquestionably shielded” by the First Amendment. Nonrepresentational art, instrumental music, and nonsense: all receive constitutional coverage under an amendment protecting “the freedom of speech,” even though none involves what we typically think of as speech—the use of words to convey meaning.   

As a legal matter, the Court’s conclusion is clearly correct, but its premises are murky, and they raise difficult questions about the possibilities and limitations of law and expression. Nonrepresentational art, instrumental music, and nonsense do not employ language in any traditional sense, and sometimes do not even involve the transmission of articulable ideas. How, then, can they be treated as “speech” for constitutional purposes? What does the difficulty of that question suggest for First Amendment law and theory? And can law resolve such inquiries without relying on aesthetics, ethics, and philosophy?  

Comprehensive and compelling, this book represents a sustained effort to account, constitutionally, for these modes of “speech.” While it is firmly centered in debates about First Amendment issues, it addresses them in a novel way, using subject matter that is uniquely well suited to the task, and whose constitutional salience has been under-explored. Drawing on existing legal doctrine, aesthetics, and analytical philosophy, three celebrated law scholars show us how and why speech beyond words should be fundamental to our understanding of the First Amendment.


January 25, 2017 | Permalink

Tuesday, January 24, 2017

Frischmann on Understanding the Role of the BBC as a Provider of Public Infrastructure @BrettFrischmann @CardozoLaw

Brett M. Frischmann, Cardozo School of Law, has published Understanding the Role of the BBC as a Provider of Public Infrastructure as Cardozo Legal Studies Research Paper No. 507. Here is the abstract.

This paper explores the ways in which the BBC produces, sustains, and makes available resources that may be considered infrastructural. In the past, the BBC has been justified through appeals to the economic theory of public goods. Public goods theory is a useful place to start, but it is not enough. It fails to describe fully what role the BBC actually plays in British society. For example, some have suggested that since technology now makes exclusion relatively cheap (e.g., encrypted broadcast signals), content is no longer properly classified as a public good and the BBC’s role as public good provider should shrink because markets should no longer fail. This argument is flawed, however. Simply put, even with low cost exclusion, a host of market failures remain. For example, the market may under supply certain types of content (e.g. regional programming) because it is not sufficiently profitable. In this context, the BBC continues to plays a critical role in ensuring society is provided with a wide range of public and social goods that are underprovided by markets. To appreciate how the BBC helps to resolve these wider market failures, as well as providing a bridge between markets, government, and society, it is helpful to move beyond simple public goods theory and look to a recently developed economic theory of infrastructure. This theory considers infrastructure to be a special class of public good that has particular demand side features. Accordingly, this paper explains how the BBC produces and manages public infrastructure and how managing such infrastructure as a commons yields significant social value. The paper is divided into three parts. The first part provides a brief explanation of infrastructure theory; the second part applies the theory to the BBC; the third part offers a few tentative suggestions for the future of the BBC as well as for future research and discussion.
Download the article from SSRN at the link.

January 24, 2017 | Permalink

Monday, January 23, 2017

Frye on Incidental IP (Mostly Baseball Cards, He Says) @brianlfrye @ABAesq

Brian L. Frye has published "Incidental Intellectual Property" in the Entertainment and Sports Lawyer, v. 33 (Winter 2017). Batter up!

January 23, 2017 | Permalink

Mezei on the Development of Hungarian Copyright Law 1793-1884

Peter Mezei, Institute of Comparative Law, has published A Development of Hungarian Copyright Law Until the Creation of the First Copyright Act (1793-1884). Here is the abstract.

The study attempts to outline the development of Hungarian copyright law from 1793 until the enactment of Act XVI of 1884. This study primarily focuses on Hungarian events; however, it is inevitable to set our sight beyond borders at points and evoke especially German, Austrian and French events which the Hungarians were paying undivided attention to as well. The chapters of the paper introduces the emergence of the concept of copyright law in the early 19th century, as well as the legislative proposals from the middle of the 19th century. Finally, the most important elements of the first copyright act of Hungary are also outlined.

Download the article from SSRN at the link.

January 23, 2017 | Permalink

Samantha Barbas' New Book on Time Inc. v Hill (Stanford University Press) @SamanthaBarbas @stanfordpress

New from Stanford University Press:


Samantha Barbas, The Supreme Court Battle Over Privacy and Press Freedom (Stanford: Stanford University Press, 2017). 

In 1952, the Hill family was held hostage by escaped convicts in their suburban Pennsylvania home. The family of seven was trapped for nineteen hours by three fugitives who treated them politely, took their clothes and car, and left them unharmed. The Hills quickly became the subject of international media coverage. Public interest eventually died out, and the Hills went back to their ordinary, obscure lives. Until, a few years later, the Hills were once again unwillingly thrust into the spotlight by the media—with a best-selling novel loosely based on their ordeal, a play, a big-budget Hollywood adaptation starring Humphrey Bogart, and an article in Life magazine. Newsworthy is the story of their story, the media firestorm that ensued, and their legal fight to end unwanted, embarrassing, distorted public exposure that ended in personal tragedy. This story led to an important 1967 Supreme Court decision—Time, Inc. v. Hill—that still influences our approach to privacy and freedom of the press.

Newsworthy draws on personal interviews, unexplored legal records, and archival material, including the papers and correspondence of Richard Nixon (who, prior to his presidency, was a Wall Street lawyer and argued the Hill family's case before the Supreme Court), Leonard Garment, Joseph Hayes, Earl Warren, Hugo Black, William Douglas, and Abe Fortas. Samantha Barbas explores the legal, cultural, and political wars waged around this seminal privacy and First Amendment case. This is a story of how American law and culture struggled to define and reconcile the right of privacy and the rights of the press at a critical point in history—when the news media were at the peak of their authority and when cultural and political exigencies pushed free expression rights to the forefront of social debate. Newsworthy weaves together a fascinating account of the rise of big media in America and the public's complex, ongoing love-hate affair with the press.



Essential reading.

January 23, 2017 | Permalink

New Book on Nigerian Media Law and Policy By Linus Nnabuike Malu Now Available

New publication from Malthouse Law Books:

Linus Nnabuike Malu, Media Law and Policy in Nigeria (Malthouse Press, Ltd, Lagos, 2016). Among the chapters are "Evolution of the Nigerian Media," "The Politics and Jurisprudence of the Nigerian Press Council," "The National Boardcasting Act," chapters on defamation, sedition, contempt of court, regulation of the movie industry, freedom of expression and privacy, access to information, regulation of the press during military regimes, and the relationship between the national Nigerian order and the international legal regime. The author includes a table of cases and a table of statutes (which includes international agreements), and an index.  I haven't read the book yet, but it looks interesting.

January 23, 2017 | Permalink

Friday, January 20, 2017

Call For Proposals, Leonard C. Goodman Institute for Investigative Reporting @rejburns @inthesetimesmag

From Rebecca Burns, In These Times Magazine:



Call for proposals: Leonard C. Goodman Institute for Investigative Reporting

The Goodman Institute is currently seeking proposals for investigative stories that serve the public interest. The application deadline is Monday, February 20.

Through the Institute, In These Times magazine funds and publishes journalism that challenges—and changes—the status quo. While we will consider proposals on any investigative topic, at this time we are especially interested in stories that examine the following issues:

  • Corporate influence on policy, especially policy that has discriminatory or harmful effects
  • The dismantling of the social safety net, such as pensions, Medicaid and federal housing assistance
  • Labor practices
  • Environmental justice
  • The causes of economic inequality

We also take into consideration the geographic diversity of proposed stories and whether an investigation has the potential to show evidence of both wrongdoing and the harm it causes.

To apply, please see details below and on our website. And don’t hesitate to contact me with questions or to get feedback on proposal ideas.

We're also open to discussing collaborations with other outlets and organizations.


Rebecca Burns

Associate Editor

In These Times Magazine

773-772-0100 x 228

The Leonard C. Goodman Institute for Investigative Reporting is dedicated to providing editorial and financial support to journalists pursuing in-depth investigative projects that align with In These Times’ mission of advancing democracy and economic justice, informing movements for a more humane world, and providing an accessible forum for debate about the policies that shape our future.

Through the Institute, supported by a generous grant from Chicago attorney Leonard C. Goodman, In These Times will fund and subsequently publish investigative journalism that challenges—and changes—the status quo. Inspired by Progressive Era muckrakers such as Upton Sinclair, Ida B. Wells and Lincoln Steffens—who helped usher in reforms like women’s suffrage, an eight-hour workday and an end to child labor—In These Times has remained committed to its founding belief that, working together in a democracy, a crusading press and an informed public can create change.

As newsroom budgets shrink and media becomes increasingly conglomerated, it’s becoming more and more difficult for journalists to support themselves through reporting—especially those journalists interested in pursuing stories that serve the public interest, not corporate interests. The Leonard C. Goodman Institute for Investigative Reporting was established in recognition of this and of the tremendous amount of time and labor that goes into investigative reporting. The Institute is committed to compensating writers fairly for their work. Journalists whose investigative proposals are accepted by the Institute will thus receive both a competitive per-word rate for their work and compensation for travel and other expenses incurred during reporting.


Call for Proposals

The Institute encourages journalists to submit story proposals for consideration. To submit a proposal, send an email to Executive Editor Jessica Stites at jessica inthesetimes  com with the subject line “Goodman Institute Submission.” Please include all of the following in a single Word document:

January 20, 2017 | Permalink

Thursday, January 19, 2017

Menell on the Oracle v. Google Litigation and Copyright Law

Peter S. Menell, University of California, Berkeley, School of Law, has published Rise of the API Copyright Dead?: An Updated Epitaph for Copyright Protection of Network and Functional Features of Computer Software. Here is the abstract.

After a decade of bruising legal battles, the courts and software industry norms largely resolved the costly war over the scope of copyright protection for computer software. By the mid 1990s, freedom to develop interoperable devices, systems, and software triumphed over broad copyright protection for network features of computer software. Copyright peace prevailed throughout the software industry for the next 15 years. But in 2010, Oracle reignited the smoldering embers of that war when it brought suit alleging that Google infringed copyright in the Java application program interface packages (APIs)... This article updates and expands upon an earlier “epitaph” for copyright protection of network features of computer software to address the second API copyright wave. As background, Part I reviews the first wave of API copyright legislation and litigation. Part II examines the Oracle v. Google litigation, tracing the development of Java and Android and the subsequent (and still ongoing) battle over the scope of copyright protection for APIs. Part III critically analyzes the Oracle v. Google decisions. It explains that copyright law’s fundamental exclusion of protection for functional features dictates that the labeling conventions and packaging of functions within interface specifications generally fall outside of the scope of copyright protection even as implementing code garners thin copyright protection. This interpretation of copyright law comports with fundamental principles channeling protection among the modes of intellectual property. It also serves the larger goals of intellectual property law and competition policy.

Download the article from SSRN at the link.

January 19, 2017 | Permalink

Monday, January 16, 2017

A New Blog About Fashion and Law, From Two Canadian Law Students

Two Osgoode Hall law students, Saba Samarian and Alessia Monastero, have launched a fashion law blog, Unprecedentedly Chic. It's aimed at the non-lawyer who wants to understand legal issues that have an impact on fashion and related disciplines. The women also discuss their own love of fashion and style. Check the blog out here. 

January 16, 2017 | Permalink

Wednesday, January 11, 2017

Buzzfeed Publishes Original Memos Concerning Allegations Re Trump and Russia

Buzzfeed's decision to publish memos including unverified information regarding personal and financial information relating to President-Elect Donald Trump has caused some reaction among journalists. Here, a story from CNN, here a piece from Slate. Here, Buzzfeed's original piece

January 11, 2017 | Permalink

Tuesday, January 10, 2017

Peukert on An EU Related Right for Press Publishers Concerning Digital Uses

Alexander Peukert, Goethe University Frankfurt, Faculty of Law, Cluster of Excellence Normative Orders, has published An EU Related Right for Press Publishers Concerning Digital Uses. A Legal Analysis as Research Paper of the Faculty of Law, Goethe University Frankfurt am Main, No. 22/2016. Here is the abstract.

On 14 September 2016, the European Commission proposed a Directive on “copyright in the Digital Single Market”. This proposal includes an Article 11 on the “protection of press publications concerning digital uses”, according to which “Member States shall provide publishers of press publications with the rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC for the digital use of their press publications.” Relying on the experiences and debates surrounding the German and Spanish laws in this area, this study presents a legal analysis of the proposal for an EU related right for press publishers (RRPP). After a brief overview over the general limits of the EU competence to introduce such a new related right, the study critically examines the purpose of an RRPP. On this basis, the next section distinguishes three versions of an RRPP with regard to its subject-matter and scope, and considers the practical and legal implications of these alternatives, in particular having regard to fundamental rights.

Download the article from SSRN at the link.

January 10, 2017 | Permalink

Manias-Muñoz on The Impact of a Legal Framework on National Film Industry: An Approach to Basque-Language Cinema @UofGlasgow

Miren Manias-Muñoz, University of Glasgow, Centre for Cultural Policy Research, has published The Impact of a Legal Framework on National Film Industry: An Approach to Basque-Language Cinema, in volume 6, number 5, of Oñati Socio-Legal Series (2016). Here is the abstract.

English Abstract: After the incursion of the digitalisation and the Internet, new forms of cultural production, reception and consumption have come via the hands of technological convergence and the way society has adapted to that scenario. In the current context of globalisation traditional cultural conceptualisation has been modified by opening up an economic discourse based on knowledge, creativity and innovation. But how are cultural policies bringing this paradigm into their protection framework? As part of the cultural activity, cinema plays a core role contributing to the national economic competitiveness and social cohesion. However, small cinemas struggle and films made in minority languages face a lot more difficulties. This paper shows how a legal change has made a certain funding model possible for cinema in the Basque-language, suggesting that a legally binding space where a specific cultural subject is primarily recognised has become crucial for films in Basque. Spanish Abstract: Tras la llegada de la digitalización e Internet, han surgido nuevas formas de producción, recepción y consumo de cultura, de la mano de la convergencia tecnológica y la forma en la que la sociedad se ha adaptado a ese escenario. En el contexto actual de la globalización, la conceptualización cultural tradicional se ha modificado por un nuevo discurso económico basado en el conocimiento, la creatividad y la innovación. Pero ¿cómo están integrando las políticas culturales este paradigma en su marco de protección? Como parte de la actividad cultural, el cine juega un papel fundamental, contribuyendo a la competitividad económica nacional y a la cohesión social. Sin embargo, las salas de cine pequeñas experimentan dificultades y las películas rodadas en lenguas minoritarias se enfrentan a numerosas dificultades. Este artículo muestra cómo un cambio legal ha hecho posible un modelo de financiación para el cine en lengua vasca, y se sugiere que es fundamental para las películas en euskera contar con un espacio jurídicamente vinculante, en el que se reconozca un sujeto específicamente cultural.

Download the article from SSRN at the link.

January 10, 2017 | Permalink

Handke on Intellectual Property in Creative Industries: The Economic Perspective @erasmusuni

Christian Handke, Erasmus University Rotterdam, Faculty of History and Arts, is publishing Intellectual Property in Creative Industries: The Economic Perspective in Research Handbook on Intellectual Property and Creative Industries (C. Waelde and A. Brown, eds., Cheltenham, E. Elgar, forthcoming).

This chapter discusses essential elements of an economic analysis regarding the socio-economic implications of intellectual property (IP). The aim is to help scholars from various disciplines interested in the economic reasoning behind IP for creative industries to recognize logically consistent and well-rounded assessments or to develop them themselves. The chapter covers: (1) a general introduction to the economic perspective on IP; (2) the application of economic theory to address the implications of unauthorized use and copyright protection; (3) empirical evidence on the effects of copyright protection on rights holder revenues and innovation as well as alternatives to copyright to help finance creativity; (4) key topics in the relatively extensive economic literature on patents and how it may inform research on IP in creative industries. It also (5) points out new issues regarding IP in creative industries in the context of digitization.

Download the essay from SSRN at the link.

January 10, 2017 | Permalink

Monday, January 9, 2017

Cohen-Almagor on Hate and Racist Speech in the United States @almagor35

Raphael Cohen-Almagor, University of Hull, has published Hate and Racist Speech in the United States: A Critique at 6 Philosophy and Public Issues 77 (2016). Here is the abstract.

This article attempts to explain why the United States is exhibiting the most liberal stand on protecting freedom of expression. It is argued that the American credo is comprised of strong belief in liberty and individuality and of strong anti-government sentiment. The First Amendment is enshrined in its culture and tradition. The protection of political speech is fundamental to the American democracy. As U.S. Constitution strongly protects political speech, it confers protection also on hate speech which is included in the broad definition of political speech. The article advocates that we take the evils of hate speech seriously. It criticizes the American ‘viewpoint-neutrality’ concept and argues that a balance needs to be struck between competing social interests. Freedom of expression is important as is the protection of vulnerable minorities.

Download the article from SSRN at the link.

January 9, 2017 | Permalink

Rimmer on 3D Printing Jurassic Park: Copyright Law, Cultural Institutions, and Makerspaces @DrRimmer

Matthew Rimmer, Queensland University of Technology, is publishing 3D Printing Jurassic Park: Copyright Law, Cultural Institutions, and Makerspaces in Pandora's Box 1-2. Here is the abstract.

3D printing is a field of technology, which enabled the manufacturing of physical objects from three-dimensional digital models. The discipline of copyright law has been challenged and disrupted by the emergence of 3D printing and additive manufacturing. 3D Printing poses questions about the subject matter protected under copyright law. Copyright law provides for exclusive economic and moral rights in respect of cultural works – such as literary works, artistic works, musical works, dramatic works, as well as other subject matter like radio and television broadcasts, sound recordings, and published editions. Copyright law demands a threshold requirement of originality. There have been sometimes issues about the interaction between copyright law and designs law in respect of works of artistic craftsmanship. In addition, 3D printing has raised larger questions about copyright infringement. There has been significant debate over the scope of copyright exceptions – such as the defence of fair dealing, and exceptions for cultural institutions. Moreover, there has been debate over the operation of digital copyright measures in respect of 3D printing. The takedown and notice system has affected services and sites, which enable the sharing of 3D printing designs. Technological protection measures – digital locks – have also raised challenges for 3D printing. The long duration of copyright protection in Australia and the United States has also raised issues in respect of 3D printing. There has been great public policy interest into how copyright law will address and accommodate the disruptive technologies of 3D Printing. As a public policy expert at Public Knowledge, and as a lawyer working for Shapeways, Michael Weinberg has written a number of public policy papers on intellectual property and 3D Printing. Associate Professor Dinusha Mendis and her colleagues have undertaken legal and empirical research on intellectual property and 3D printing. In 2015, Professor Mark Lemley from Stanford Law School wrote about intellectual property and 3D printing in the context of work on the economics of abundance. As a practising lawyer, John Hornick has examined the topic of intellectual property and 3D printing. Comparative legal scholar Dr Angela Daly has written on the socio-legal aspects of 3D printing in 2016. The World Intellectual Property Organization in 2015 highlighted 3D printing. 3D printing has provided new opportunities for cultural institutions to redefine their activities and purposes, and engage with a variety of new constituencies. 3D printing has also highlighted deficiencies in copyright law in respect of cultural institutions. Culturally and technologically specific exceptions for libraries, archives, and cultural institutions have proven to be ill-adapted for an age of 3D printing and makerspaces. The Australian Law Reform Commission has highlighted the need to modernise Australia’s copyright laws for the digital age. Likewise, the Productivity Commission has considered the question of copyright exceptions in its study of intellectual property arrangements in 2016. The Turnbull Government has contemplated somewhat more modest copyright reforms, with the draft legislation in the Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth). Libraries, galleries, museums, and archives would all benefit from flexible copyright exceptions for cultural institutions to take full advantage of the possibilities of digitisation and 3D printing.

Download the text from SSRN.

January 9, 2017 | Permalink

Todd on Satire in Defamation Law

Jeff Todd, Texas State University, San Marcos, Department of Finance and Economics, is publishing Satire in Defamation Law: Toward a Critical Understanding in volume 35 of the Review of Litigation (2016). Here is the abstract.

Though defamation, with its blend of common law and Constitutional overlay, is already a complex area of law, when the subject of litigation involves satire, the confusion multiplies. Courts and commentators offer an array of definitions of satire and how it differs — or not — from parody and humor. The literary devices that satire employs receive only surface treatment or are considered as isolated figures and tropes. A variety of different tests have emerged to deal with satire and its devices, leaving satirists in a difficult position of trying to defend a work that has an uncertain place in the law. This essay discusses a suit filed by science writer Paul Brodeur against the makers of the Academy-Award-nominated film American Hustle as a frame to highlight the problems of satire in defamation and to suggest further avenues of study, including some of the practical benefits of additional scholarship.

The full text is not available from SSRN.

January 9, 2017 | Permalink

Tomain on Big Data and the Fourth Estate: Protecting the Development of News Media Monitoring Databases

Joseph A. Tomain, Indiana University Maurer School of Law, has published Big Data and the Fourth Estate: Protecting the Development of News Media Monitoring Databases at 12 J. Bus. & Tech. L. 53 (2016).


Tomain contends that news media monitoring databases generally fall within fair use rights and may be protected under the qualified First Amendment right to receive information and ideas.

January 9, 2017 | Permalink

Saturday, January 7, 2017

Canadian Journalist Files Defamation Suit Against Site Over Satiric Obituary

Richard Martineau,  who writes for the Journal de Montréal, is suing the media site Ricochet for defamation over a satirical piece, a fake obit that takes his writing to task.  The site is trying to raise $50,000 CAN to pay legal costs.

More here from Canadaland, here from the Montreal Gazette.

January 7, 2017 | Permalink

Friday, January 6, 2017

Roy Greenslade's Blog Is Coming To an End

Roy Greenslade, who has published a blog in the Guardian for years, will stop doing so at the end of January 2017 and move on to other activities, although he says he won't cease writing about the media. He intends to continue writing for the paper, concentrating on the changes in the media, particularly as new media continues to change the journalistic landscape. More here.

January 6, 2017 | Permalink

Thursday, January 5, 2017

Basu on Copyright Law & the Drummer

Ronojoy Basu, University of Toronto, has published Copyright Law & The Drummer. Here is the abstract.

Recent relevant judicial decisions in the US suggest that the question of subsistence of originality in drum beats remains a subject of debate. Unbeknownst to the non-musical world, this question continues to gather momentum and poses some rather interesting questions about degree and threshold of creativity and applicability of Copyright law. This paper explores the copyright-ability of drum patterns, the position of US and Canadian laws on the subject and under what circumstances may such beats be accorded copyright protection.

Download the article from SSRN at the link.

January 5, 2017 | Permalink