Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, April 29, 2019

The UK's White Paper on Online Harms

Via the Index on Censorship: the Online Harms White Paper, published by the UK Government's Secretary of State for Digital, Culture, Media & Sport and the Secretary of State for the Home Department.  Here is a link to the Executive Summary. 

It begins:


The government wants the UK to be the safest place in the world to go online, and the best place to start and grow a digital business. Given the prevalence of illegal and harmful content online, and the level of public concern about online harms, not just in the UK but worldwide, we believe that the digital economy urgently needs a new regulatory framework to improve our citizens’ safety online. This will rebuild public confidence and set clear expectations of companies, allowing our citizens to enjoy more safely the benefits that online services offer.



April 29, 2019 | Permalink

Lipton on Whether Literary Agents Are Really Fiduciaries

Jacqueline D. Lipton, University of Pittsburgh Law School, is publishing Are Literary Agents (Really) Fiduciaries? in volume 86 of the Tennessee Law Review (2019). Here is the abstract.

2018 was a big year for “bad agents” in the publishing world. In July, children’s literature agent Danielle Smith was exposed for lying to her clients about submissions and publication offers. In December, major literary agency Donadio & Olson, which represented a number of bestselling authors, including Chuck Palahnuik (Fight Club), filed for bankruptcy in the wake of an accounting scandal involving their bookkeeper, Darin Webb. Webb had embezzled over $3 million of client funds. Around the same time, Australian literary agent Selwa Anthony lost a battle in the New South Wales Supreme Court involving royalties she owed to her ex-client, international best-selling author, Kate Morton (The Lake House, The Shifting Fog). These are not the only literary agent scandals that have rocked the publishing world in recent years. However, litigation involving these agents is the exception rather than the rule, possibly because of a lack of knowledge by many authors, even famous authors, of their legal rights, or because the money made (or lost) by a number of authors isn’t worth the costs of litigation. The lack of legal precedent on the literary agent/author relationship can also lead to confusion about what the legal rights between the two parties entail. This article analyzes the existing case law in the area, with a particular emphasis on teasing out the nature of fiduciary, contractual, and tortious duties owed by agents to authors. Recent cases suggest that, although literary agents are unquestionably fiduciaries, this characterization is of little practical importance, and that most of the obligations owed by agents to authors can more easily be explained and addressed as a matter of contract and tort law. To the extent that fiduciary duties have any significant work to do here, it seems to be in the “effective communication” area rather than in the more fundamental aspects of the relationship, like making deals and promoting the financial and reputational interests of the author.

Download the article from SSRN at the link.

April 29, 2019 | Permalink

McKenna on Dilution and Free Speech in the U.S.--Reprise @markpmckenna

Mark P. McKenna, Notre Dame Law School, has published Dilution and Free Speech in the U.S., Reprise. Here the abstract.

This Chapter address the topic of trademark dilution — the additional protection granted to famous trademarks under United States (U.S.) law. In particular it considers whether either form of dilution (dilution by blurring or by tarnishment) is an unconstitutional restriction on speech in light of recent U.S. Supreme Court caselaw. I argue that dilution by tarnishment is likely unconstitutional under now-prevailing law, and that there’s at least a plausible argument that dilution by blurring is unconstitutional as well. I do not necessarily predict that courts will hold either form of dilution unconstitutional. But to avoid that conclusion, courts will have to develop distinctions that are not now apparent in the law.

Download the Chapter from SSRN at the link.

April 29, 2019 | Permalink

Friday, April 26, 2019

Rosenblatt on Who Speaks For Slender Man

Elizabeth Rosenblatt, University of California, Davis, has published Who Will Speak For The Slender Man?: Dialogism and Dilemmas in Character Copyright in volume 70 of the Florida Law Forum (2018). Here is the abstract.

This Essay responds to Professor Cathay Smith’s Article, Beware the Slender Man: Intellectual Property and Internet Folklore, and suggests what the law of character copyright can learn from the legal complications and ambiguities surrounding intellectual property ownership of Internet folklore. Specifically, the essay explores the dialogic nature of character creation and the overlapping relationship between character and genre to highlight ways in which collectively-created characters are at particular risks for chilling claims of private ownership.

Download the essay from SSRN at the link.

April 26, 2019 | Permalink

Wednesday, April 24, 2019

Moreham and Tinsley on the Impact of Grief Journalism on Its Subjects @VicUniWgtn

N. A. Moreham and Yvette Tinsley, both of the Victoria University of Wellington Faculty of Law, have published The Impact of Grief Journalism on Its Subjects: Lessons From the Pike River Mining Disaster in the Journal of Media Law (2019). Here is the abstract.

The depiction of grief and intense anxiety is commonplace in modern journalism. Little work has been done, however, to examine the impact of the collection and publication of such material on those who appear in it. This article explores that issue, drawing both on secondary literature and the authors’ original qualitative research into the experiences of family members of 29 men killed in a New Zealand mining tragedy. It concludes that the effects of grief-focused journalism on its subjects can be significant. Five negative impacts are explored: fear and loss of physical security; stress and loss of emotional equilibrium; feelings of violation and exploitation; loss of autonomy and control; and interference with relationships and emotional recovery. Note: A version of the article (which is not the Version of Record) can be found on the authors' personal webpages on the website of the Victoria University of Wellington Law School.

The full text is not available for download from SSRN. Here is a version of the text available from Professor Moreham's webpage. 

April 24, 2019 | Permalink

Tuesday, April 23, 2019

Beebe and Fromer on Immoral or Scandalous Marks: An Empirical Analysis @Jeanne Fromer

Barton Beebe and Jeanne C. Fromer, both of New York University School of Law, have published Immoral or Scandalous Marks: An Empirical Analysis. Here is the abstract.

This article reports the results of a systematic empirical study of how the Patent and Trademark Office has applied trademark law’s prohibition on the registration of immoral or scandalous marks. We conducted this study for an amicus brief we submitted to the U.S. Supreme Court in Iancu v. Brunetti, 139 S. Ct. 782 (Jan. 4, 2019) (No. 18-302). In that case, the Supreme Court is considering whether the immoral-or-scandalous-marks provision runs afoul of the First Amendment’s Free Speech Clause. Our study shows, from multiple vantage points, that the Patent and Trademark Office applies the immoral-or-scandalous prohibition in an arbitrary, inconsistent, and viewpoint-discriminatory matter. On the basis of these empirical findings, we conclude that the bar on the registration of immoral-or-scandalous matter violates the Free Speech Clause because of a lack of fit between the purposes of the provision and the provision as enforced. The Patent and Trademark Office’s inconsistent and arbitrary enforcement also indicates unconstitutional vagueness. This article is based on the brief we submitted.

Download the article from SSRN at the link.

April 23, 2019 | Permalink

Silbey on Control over Contemporary Photography: A Tangle of Copyright, Right of Publicity, and the First Amendment @JSilbey

Jessica M. Silbey, Northeastern University School of Law, has published Control over Contemporary Photography: A Tangle of Copyright, Right of Publicity, and the First Amendment at 42 Columbia Journal of Law & the Arts 351 (2019). Here is the abstract.

Professional photographers who make photographs of people negotiate a tense relationship between their own creative freedoms and the right of their subjects to control their images. This negotiation formally takes place over the terrain of copyright, right of publicity, and the First Amendment. Informally, photographers describe implied understandings and practice norms guiding their relationship with subjects, infrequently memorialized in short, boilerplate contractual releases. This short essay explores these formal and informal practices described by contemporary professional photographers. Although the evidence for this essay comes from professional photographic practice culled from interviews with contemporary photographers, the analysis of the evidence speaks to the more general challenge of balancing privacy and freedom of expression in the digital age. At the outset of this essay, I describe the scope of the empirical project and the process of collecting data. Then, in three parts, I describe how photographers simultaneously collaborate with and control the subjects of the photographs they make in order to assert themselves as civic storytellers with broad free speech rights in our digital age. I identify a conflict between photographers and their subjects, which serves to maximize the aesthetic freedom of photographers at the expense of their subjects. This conflict resolves in the photographers’ accounts through their caretaking role over their photographs on behalf of the subjects themselves. I conclude with a brief explanation of why it matters to better understand these professional photographic norms in our Internet age when free speech and privacy are increasingly in conflict.

Download the article from SSRN at the link.

April 23, 2019 | Permalink

Monday, April 22, 2019

Trudeau on "The Simpsons"? Oh, Canada! @meyer_lucas @TheSimpsons

Canadian Prime Minister Justin Trudeau will be a guest character on Sunday's episode of "The Simpsons," but he won't be the voice for his own character. That duty will fall to Lucas Meyer, a reporter for NEWSTALK1010 in Toronto.

More here from the Globe and Mail.  

April 22, 2019 | Permalink

Tushnet on the First Amendment and Trademark Registration @rtushnet

Rebecca Tushnet, Georgetown University Law Center, has published The First Amendment Walks Into a Bar: Trademark Registration and Free Speech, at 92 Notre Dame L. Rev. 381 (2016). Here is the abstract.

This Article analyzes the First Amendment arguments against section 2(a)’s disparagement bar with reference to the consequences of any invalidation on the rest of the trademark statute. My fundamental conclusions are that In re Tam is wrongly reasoned even given the Supreme Court’s increased scrutiny of commercial speech regulations, and that to hold otherwise and preserve the rest of trademark law would require unprincipled distinctions within trademark law. More generally, the Supreme Court’s First Amendment jurisprudence has become so expansive as to threaten basic aspects of the regulatory state; the result of subjecting economic regulations such as trademark registration to strict First Amendment scrutiny shows the damage that can be done thereby.

Download the article from the Law Review website at the link.

April 22, 2019 | Permalink

Tuesday, April 16, 2019

Wilson on Brandenburg in an Era of Populism @richardawilson7

Richard Ashby Wilson, University of Connecticut School of Law, is publishing Brandenburg in An Era of Populism: Risk Analysis in the First Amendment in the University of Pennsylvania Journal of Law & Public Affairs (2019). Here is the abstract.

We live in an era of populism, characterized by political polarization, speech that incites violence on social media, and an escalation in hate crimes. The regulatory framework established fifty years ago in Brandenburg is showing signs of severe strain. One of the central frailties of Brandenburg’s three-part test for incitement is the lack of guidance on how to evaluate whether a speech act is likely to incite an imminent offence. In the absence of clear direction on how to assess the possible causal effects of speech, judges often rely on outdated heuristics and misleading metaphors. This article is the first to draw on behavioral research to construct a systematic, evidence-based framework for analyzing the risk that inciting speech will result in imminent lawless action. The proposed matrix is then applied to the fact pattern in Sines v. Kessler, a civil suit arising from the events in Charlottesville in 2017.

Download the Article from SSRN at the link.

April 16, 2019 | Permalink

Travis on The "Monster" That Ate Social Networking? @fiulaw

Hannibal Travis, Florida International University College of Law, has published  The ‘Monster’ That Ate Social Networking? in Cyberspace Law: Censorship and Regulation of the Internet (Travis ed., Routledge 2013). Here is the abstract.

This chapter analyzes the privacy, intellectual property, competition policy, and human rights law implications of the rise of Facebook and the threat of a natural monopoly in social networking. Facebook instructed its users that it may provide friend lists and other profile information to third parties, as well as to law enforcement when it thinks public safety is at issue. The service warned users that it may disclose information without permission, but with “notice, such as by telling you about it in [a data use] policy.” In 2009, Facebook announced the settlement of a class-action lawsuit brought on behalf of users of Facebook as of November 2007, which involved privacy violations. Facebook subsequently became embroiled in patent litigation, democratization movements, and the mass surveillance of unsuspecting users, and this chapter briefly surveys its role in these controversies. The book in which it appears explores what the American Civil Liberties Union calls the ‘third era’ in cyberspace, in which filters "fundamentally alter the architectural structure of the Internet, with significant implications for free speech." Although courts and nongovernmental organizations increasingly insist upon constitutional and other legal guarantees of a freewheeling Internet, multinational corporations compete to produce tools and strategies for making it more predictable. When Google attempted to improve our access to information contained in books and the World Wide Web, copyright litigation began to tie up the process of making content searchable, and resulted in the wrongful removal of access to thousands if not millions of works. Just as the courts were insisting that using trademarks online to criticize their owners is First Amendment-protected speech, corporations and trade associations accelerated their development of ways to make Internet companies liable for their users’ infringing words and actions, potentially circumventing free speech rights. Finally, as social networking and content-sharing sites have proliferated, so have content-detecting tools for finding, flagging, and deleting content that makes one or another corporation or trade association fear for its image or profits. The book provides a legal history of Internet regulation since the mid-1990s, with a particular focus on efforts by patent, trademark, and copyright owners to compel Internet firms to monitor their online offerings and remove or pay for any violations of the rights of others.
Download the essay from SSRN at the link.

April 16, 2019 | Permalink

Wednesday, April 10, 2019

Georgia Lawmakers Introduce Bill To Create Ethics In Journalism Board and Standards To Hold Journalists Accountable For Their Reporting

Six Georgia state lawmakers think a set of ethical standards for journalists would be an excellent idea, and they've introduced a bill, "The Ethics in Journalism Act," to try to make it so.  Coverage from the Atlanta Journal-Constitution points out that the proposed standards would hold Georgia journalists to higher standards than the lawmakers themselves. Here's a link to the text of the bill, HB 734.

Coverage from the Atlanta Journal-Constitution, the Columbia Journalism Review  and the Washington Post.

April 10, 2019 | Permalink

Friday, April 5, 2019

Haupt on Sex and the First Amendment Through the Lens of Professional Speech @CEHaupt

Claudia E. Haupt, Northeastern University School of Law; Yale University, Yale Information Society Project, is publishing Sex and the First Amendment Through the Lens of Professional Speech in volume 17 of the First Amendment Law Review (2019). Here is the abstract.

First Amendment theory and doctrine apply in distinctive ways in the context of professional speech. Within the professional-client relationship, the law constrains professionals in various ways. Professionals are subject to licensing and malpractice regimes. They have fiduciary duties to their clients or patients. Because clients and patients seek professional advice in order to access knowledge they lack but need to make important decisions, professional advice must be comprehensive and accurate according to the insights of the relevant professional knowledge community. And dispensing professional advice within the professional-client relationship ought to remain free from state interference that seeks to prescribe its content in a way that contradicts professional knowledge. Implicit in the professional speech story are themes of sex, gender, sexual orientation, and religion. Much of professional speech doctrine in the courts has most recently developed around conversion therapy laws and legislation concerning reproductive rights. In part due to continued contestation surrounding these issues, the development of professional speech doctrine has been uneven and still lacks theoretical coherence. This Article charts the sites of conflict that typically arise in the professional context, and further unpacks how professional speech theory and doctrine apply in likely future conflicts around reproductive rights and transgender healthcare.

Download the article from SSRN at the link.

April 5, 2019 | Permalink

Thursday, April 4, 2019

Parliamentary Report on the Inquiry Into the Australian Music Industry

Just released by the House Standing Committee on Communications and the Arts: A report on the inquiry in the Australian music industry. Download it from links available here. 

April 4, 2019 | Permalink

Monday, April 1, 2019

Webber on Proportionality and Limitations on Freedom of Speech @GregoireWebber

Grégoire Webber, Queen's University, Faculty of Law, London School of Economics, Law Department, is publishing Proportionality and Limitations on Freedom of Speech in the Oxford Handbook of Freedom of Speech (Fred Schauer and Adrienne Stone, eds., Forthcoming).

‘Nothing is more certain in modern society’, Chief Justice Vinson wrote in the First Amendment case of Dennis v United States (1951), ‘than the principle that there are no absolutes’. That conviction was affirmed and developed in Justice Frankfurter’s concurring opinion, according to which ‘[t]he demands of free speech in a democratic society, as well as the interest in national security, are better served by candid and informed weighing of the competing interests’. Today, the confidence with which it is asserted that freedom of expression is not absolute and that competing interests are to be weighed and balanced in adjudicating free expression claims is even more resolute. Apex courts on all five continents adjudicate freedom of expression claims by denying that the freedom is absolute and by employing the principle of proportionality and its all-important balancing test. To demonstrate how much of the US debates from the 1950s and 1960s remain apposite today, I explore the appeal of proportionality and balancing for the adjudication of freedom of expression claims and review proportionality’s four evaluations. I conclude by revisiting the idea that freedom of expression cannot be absolute. It is an idea that is oft-repeated, but one that, I aim to show in brief, is based on a mistaken premise.

Download the essay from SSRN at the link.

April 1, 2019 | Permalink