I. PRODUCT PLACEMENT AND PRODUCT MISPLACEMENT a. Introduction i. Implies a connection between source and product ii. History 1.

Not a new phenomenon to have product placement. Historically, there are several examples of product placement. 2. Radio: initially radio did generate revenue a. Later, there were product sponsored programs b. EX) Colgate House Party, Jell-O Jack Benny program, Proctor-Gamble Soap Operas, Maxwell coffee hour, General Motors family party 3. TV/Movies: later trademarks in appeared in film a. EX) Breakfast at Tiffanys was filmed in front of Tiffanys b. EX) Sex and the City Minolo Blanik shoes 4. Tivo: Push vs. Pull Model a. Push advertisers get to push their ads and have the control over what consumers see. b. Pull consumer has control over what content they get. iii. Values Good or Bad? 1. Bad a. Negative associations b. Detracting from entertainment value if it is too obvious, and might to change it and not watch it. c. Deceiving if it is too subtle d. Infringing on somebodys ability to control their brand v. artistic freedom e. If we assume a product is sponsored in entertainment, then any product placement will be seen as sponsored even when they dont want it to be affiliated f. Viral and unauthorized ads no control over brand and consumer confusion i. VW suicide bomber ad on youtube ii. Puma ad giving head 2. Good a. Producer should be able to have artistic freedom to include it b. Effective marketing when product owner grants authority c. Perhaps only effective way to market in new era of Tivo. (going back to Push model) iv. US v. EU 1. US: placement not subliminal advertising a. FTC rejects petition to require advertisment label during product placement b. More liberal in allowing product placement. 2. EU: Much more restrictive a. Prohibition of surreptitious advertising b. Advertising needs to be recognized as advertising. v. Legal and Economic Issues 1. Rights Implicated a. Copyright b. Trademark/Tradedress Rights c. Right to control brand d. Right to profit from brand. 2. Claims a. Copyright Infringement i. Exclusive Rights: 1. reproduction 2. adaptation 3. display

4. performance 5. distribution ii. Purpose: 1. promote the Arts 2. provide incentive to create 3. enrich public domain iii. Elements: 1. Actual Copying a. D had access AND b. There was probative similarity between the works 2. Improper Appropriation a. More than de minimus use. iv. Defenses 1. Fair Use a. Purpose and character of work (commercial or not) b. Nature of CR work (creative or not) c. Amount and substantiality of portion used d. Effect of use on potential market for CR work (most impt) 2. Lack of standing a. Lack ownership or registration b. Work not CR i. Facts/research/history ii. Idea/expression dichotomy c. Not fixed in tangible medium 3. De minimis doctrine a. Amount used was not substantial 4. First amendment a. Freedom of artistic expression b. Trademark Infringement (likelihood of confusion) i. Purpose 1. prevent consumer confusion as to source, sponsorship, affiliation 2. protection of TM owners from free riding on goodwill ii. Elements 1. Valid TM 2. Whether a reasonable amount of relevant consumers are confused as to the source, sponsorship, or affliation? (8 Sleekcraft factor test) a. Strength of the mark b. Degree of similarity b/w the marks c. Similarity of the goods and services d. Channels of trade e. Actual confusion f. Intent of junior user g. Likely expansion of product or service line h. Consumer sophistication iii. Defenses 1. Nominative Fair Use - D could use FU defense to describe Ps product a. Product/service must not be readibly identifiable w/o use of TM b. Only so much of the mark may be used as is reasonably necessary to identify the TM c. User must do nothing that would suggest sponsorship or endorsement 2. Classic Fair Use a. Use of term descriptively not as TM 3. First Amendment

c.

d.

e.

f.

g.

a. Balance b/w rights of TM owner v. first amendment 4. Genericide/Generic Mark 5. News commentary 6. Non commercial use of the mark Trademark Dilution by Blurring i. Purpose 1. protection whittling away of distinctive famous brands 2. judges dont like b/c big guy picking on little guy ii. Elements 1. Famous mark--Widely recognition by general consuming public a. Duration extent and geographic reach of advertising and publicity, whether advertised or publicized by owner or third party b. Amount, volume and geographic reach of sales under the mark c. Extent of actual recognition d. Federal registration 2. whether the junior user impairs the distinctiveness of famous mark (4 factors)/ a. degree of similiarty b/w mark and famous mark b. degree of inherent or acquired distinctiveness of famous mark c. extent to which owner is engaged in exclusive use of the famous mark d. degree of recognition of the famous mark e. intent of junior user to create association with famous mark f. actual association b/w mark and famous mark Trademark Dilution by Tarnishment i. Purpose 1. protection whittling away of distinctive famous brands 2. protect brand from negative association/control of brand ii. Elements harms reputation of famous mark 1. associate product with a shoddy quality 2. negative portrayal of product Trade dress infringement i. Purpose 1. protect total image of product, may include size, shape, color, texture ii. Element 1. Not functional 2. Inherently distinctive/secondary meaning? 3. likelihood of confusion? iii. Defense 1. Functionality False Advertising i. Purpose 1. protect consumers from being mislead ii. Element 1. false or misleading representation of fact which misrepresents the nature, characteristics, quality, or geographic origin of goods and services or commercial activities Unfair competition i. Purpose 1. prevent free riding on goodwill of others 2. prevent consumer confusion ii. Element 1. simulation of name symbol or devices employed by business rival OR 2. substitution of the goods or services for one for another

3. induces purchase of goods and services under false impression as to their origin or ownership, thereby obtaining benefits properly belonging to his competitior b. Different Claims arising out of Product Placement i. Copyright Infringement 1. Introduction a. Using my work in your movie/tv show is a violation of my CR. b. Movies arg: The use of your work was de minimus and not enough to amount to CR infringement. 2. Woods v. Universal City Studios: used drawing of neomechanical tower as a model for chair in 12 Monkeys movie. The chair was 5 minutes out of the 130 minute movie. a. Holding: found CR infringement b. Rationale: The use was more than de minimis, because it is determined by amount

taken without authorization, not by characteristics of work

c. Definition of de minimis: copying of protected material is so trivial as to fall below the quantitative threshold of substantial similarity. 3. Ringgold v. BET: P created church picnic story quilt, and the Musuem turned into posters for $20. D had a show and used the poster in the background for a. Holding: found CR infringement. b. Rationale: The use was not de minimis b/c it was observable by the average lay

viewer.

c. Fair use defense failed because deprived her of licensing opportunities of selling to movie studios. 4. Sandoval v. New Line Cinema: 10 photos depicting 7 murders in the movie Seven but only showed for 36 seconds and out of focus. a. Holding: no CR infringement b. Rationale: It was de minimus, because it was so blurry. ii. Trademark Likelihood of Confusion & Dilution by Tarnishment 1. Introduction a. Trademark Infringement: there is likelihood of confusion as to the source, sponsorship or affiliation when you use my product in your movie. b. Dilution by Blurring: reduced ability of famous mark to act as s distinctive identifier c. Dilution by Tarnishment: TM is linked to shoddy quality product, or is portraed in an unwholesome or unsavory context likely to evoke unflattering thoughts about the owners product d. Trade dress infringement: 2. Trade Dress & Mark Infringement Sherwood 48 Associates v. Sony Corporation: D used buildings in Times Square in Spiderman movie. D replaced some of the ads with other ads. P brought TM infringement a. Holding: No dilution or infringement. b. Rationale: Consumers arent confused about the ads. They dont associate certain buildings with certain ads because they are changed so often c. No TD infringement ads on buildings are not TD. 3. Trademark Dilution and Infringement Wham-O v. Paramount Pictures: In the movie (Dickie Roberts), character used vegetable oilt o slide off the slip and slide and sued company and won settlement in movie. P sued movie company for dilution by tarnishment and TM infringement. a. Holding: No dilution or infringement b. Rationale: the product is obviously being mis-used here and people know it is being used wrongly. There is a Nominative Fair Use here.

Caterpillar v. Walt Disney Co: George of the Jungle 2 case Bad guy got a deed from Ape Mtn to destroy it. He uses his henchman to drive Caterpillar bulldozers to destroy Ape Mtn. The bulldozers were displayed as deleterious dozers and maniacal machines c. Holding: No infringement or dilution. d. Rationale: No one, even kids, would see the association with these inanimate objects. II. SEXUALLY EXPLICIT CONTENT a. Entertaining Sex and violence: Political and Social Issues i. Waves of Political Attention 1. 1992: Dan Quayle and Murphy Brown a. Glorifying single parenthood b. Dan Quayle was politician that disliked promotion of this idea c. Murphy Brown was a single mother who worked as journalists 2. 1995: Bob Dole and Rap Music a. Bob Dole is politician who was against the sex and violence in rap music 3. 2000: Joe Lieberman and family values 4. 2004: Douglas Ose and H.R. 3687 a. Close to wardrobe malfunction incident; prohibits certain cuss words b. Legislation to increase censorship ii. Random Instances of Violence and Sex Fuel Efforts to Regulate More 1. EX) Columbine High School played a lot of DOOM, Clinton started 2. Policy Questions a. Whether entertainment influences behavior? b. Whether government should be allowed to regulate morality? c. Whether certain types of entertainment should be regulated more or less? i. Yes, Tv and radio (broadcast media) is more intrusive into peoples homes. 3. Recent Instances of Broadcast Indencency a. Bono receives a Golden Globe this is really really fucking brilliant! 2003 i. 230 complaints to FCC b. Janet Jackson and Justin Timberlake on Superbowl Feb. 2004 iii. Dichotomy/Public Policy 1. Regulating Market v. Regulating speech b. First Amendment Issues i. What is Speech? 1. Football game? 2. Flag burning = expressive conduct. 3. Nude dancing = OConor says dancing is speech 4. Rock concert? 5. Intent to convey a message that cannot be conveyed but through the conduct ii. What kinds of speech regulation, if any, are permissible? a. Impermissible regulation (vagueness): i. Interstate Circuit v. City of Dallas: Dallas ordinance set up Motion Picture Classification Board to identify films not suitable for young persons, i.e., under 16. 1. Standards: portrayingcriminal violence or depravityso as to incite or encourage crime or delinquency 2. Likely to incite sexual promiscuity 3. Holding: unconstitutionally vague ii.Joseph Burstyn Inc. v. Wilson: The Miracle, St. Joseph seduces a woman. 1. Holding: regulating sacrireligious movies is too vague b. Impermissible regulation (overbroad) i. Brandenburg: violation of 1st Am to prohibit pure advocacy of illegal force iii. Who should decide what kind of speech is regulated?

a. Courts via lawsuits? b. Legislators responding to voters c. Business listening to customers? iv. Unprotected speech a. Obscene i. Miller v. CA: 3 factors to determine obscene 1. whether average person applying contemporary community standards would find the work taken as a whole appeals to the prurient interest 2. whether the work depicts or describes patently offensive way sexual conduct, applicably defined by the state law 3. whether work taken as a whole lacks serious literary, artistic, political, or scientific value ii. Ex. of Obscene: Skywalker Records v. Navarro: 2Live Crew recorded as Nasty as you Want to Be and contained some questionable lyrics. 1. Issue: Was yelling the F word along with graphic sexually description obscene? 2. holding: Taken as a whole, it was obscene b/c a. recording appeals to prurient interest, b. patently offensive, and c. not artistic b/c not a political message, not comedy, borrowed riffs from other songs so not creative b. Indecent i. Indecency Standard is less than obscenity ii. NEA v. Finley: D created work that had sexual indency and applied for public funding from NEA. NEA rejected funding due to sexual indency and they consider general stds. Of decency when awarding grants 1. Holding: Court allowed NEA to do this. c. Inciteful (fighting words) i. Brandenburg Rule: States may regulate speech that is directed to incite or produce imminent lawless action and is likely to incite or produce such action. ii. Violent acts in video games and Basketball Diaries falls short of this standard. v. Political Free Speech 1. NY Times v. Sullivan: full page ad protested wave of terror by public officials against civil rights activists. Didnt name Sullivan specifically but thought it was targeting him and libeling him. a. Holding: policy to encourage uninhibited, robust and wide-open debate on public issues i. No actual malice (knowledge, or reckless disregard, of falsity of statements made) ii. Rule: Must prove actual malice to bring a libel claim. 2. Brandenburg v. Ohio: KKK leader threatened revenge against govt for suppression of white Caucasian race. Ohio statue prohibited advocacy of the duty, necessity or propriety of crime, sabotage or violence to accomplish political reform. a. Holding: violation of 1st Am to prohibit pure advocacy of illegal force b. Rule: Only advocacy directed to inciting or producing imminent lawless action and that is likely to incite or produce such action can be made illegal. vi. Right to Privacy v. Free Speech 1. Times v. Hill: Hill family was subject to hostage situation in PA. They escaped to CN. It turned into a play then a movie, but it was inaccurate. Took the actors to the Hills home and reenacted it. D sued Time b/c they splashed it in the media and they wanted to be left alone. a. Holding: no violation of privacy even though became public figures in voluntaril b. Knowing and reckless disregard of falsity was constitutional predicate for privacfy claim c. Movies and the First Amendment i. Mutual Film v. Industrial Comm. Of Ohio: (1915)

2. Public Funding could be linked to whether it is indecent. 3. Contrast Rosenberger: Invalid for UVA to refuse funding to religious student newspaper

1. Facts: Ohio licensing scheme allowing only moral educational or amusing and harmless movies OKd 2. Holding: Movies do not fit into first amendment protection. 3. Rationale: a. Movies are just a business pure and simple b. Not part of the press or organs of public opinioin c. Strains common sense to try to fit movies within the ambit of 1st amendment protection d. Power of media for evil ii. Joseph Burstyn Inc. v. Wilson 1. Facts: case overturned NY state ban on The Miracle. The Miracle was a movie in Italian. A woman meets a guy that she thinks is St. Joseph but he seduces her and knocks her up. 2. Holding: First Amendment covers movies, so overturned the ban 3. Rationale: a. Profit making is not disqualifying (NY Times is making money too!) b. Potentially greater capacity for evil doesnt justify unbridled censorship c. NY licensing scheme = prior restraint (and we had that!) d. Ban on sacrireligious movies is too vague and sets censorship adrift on a boundless sea d. Music (as nasty as they want to be) i. Skyywalker Records v. Navarro: 2Live Crew as nasty as they want to be was obscene e. Visual arts (Brooklyn) f. Broadcasting (red lion, pacifica, act iv) i. In general, Broadcasting is more heavily regulated than the other media, because it intrudes into the home. (i.e., we allow certain time restrictions, sanctions, etc) ii. Red Lion v. FCC: FCCs fairness doctrine approved for TV and radio. Fairness doctrine mandated equal time for politicians on radio and TV. This was the case because it is more difficult to respond on TV/Radio then it is with newspapers. In newspaper, almost anyone can reply. 1. Compare no right to reply rule for newspaper in MIA Herald v. Tomillo iii. Illinois Citizens Community v. FCC: topless radio outlawed iv. FCC v. Pacifica Foundation: George Carlin Filthly words. Father was in the car with his son and heard his cuss words. FCC banned broadcast as indecent though not necessarily obscene. 1. Holding: 5-4 USSC majority held it can be regulated 2. Ds arg: a. Regulation too broad, would include too much b. Can only constitutionally prohibit obscenity not idecency c. We had a warning and you could just turn it off! 3. FCCs arg: a. Comes directly into our home and you cannot unring the bell. 4. Dissent (brennan): a. Burning the house to roast the pig. b. Should have just turned it off. Compare Cohen c. b/c now it deprives parents of a choice so where are we going to draw the line!? (Shakespeare, Hemmingway, bible) d. This case has acute ethnocentric myopia v. Safe Harbor Viewing Times 1. 1978-1987: Filthy words after 10pm 2. 1987: a. Jerker postponed safe harbor to midnight b. Howard Stern and shock radio c. FCCs new indecency definition: Language or material that depicts or describesin patently offensive [terms]sexual or excretory activities or organs. 3. ACT I (1988): Upheld new indecency std., rejected shorter safe harbor time 4. ACT II (1991): struck down FCCs 24-hour ban on broadcast indecency

5. ACT III (1993): Midnight-6am safe harbor time period struck down 6. ACT IV (1995): En banc DC Circuit reversed ACT III and upheld 6 hr. harbor g. Internet i. ACLU v. RenoCommunications Decency Act: Crime to transmit indecent material on Internet 1. indecent Transmission 47 USC 223(a) = whoeverknowinglyinitiates the transmission of anycommunication which is obscene or indecent, knowing the recipient of the cmn is under 18 years of age[or] knowingly permits any cmn. Facility under his control to be used forsuch activity, shall be fined under Title 18 or imprisoned not more than two years, or both. 2. Patently offensive display 47 USC 223(d): whoeveruses an interactive computer service to display in a manner available to a person wunder 18 years of age, anycmn. That, in context, depicts or describes, in terms of patently offensive as measured by contemporary community std. sexual or excretory activites or organsor knowingly permits any telecommunciatiosn facility under such persons control to be used forsuch activity, shall be fined under Title 18, or imprisoned not more than 2 years, or both 3. ACLU called it cyberspace equivalent of book burning 4. Stevens, J.: Ginsberg, Renton, and Pacifica distinguishable 5. Issue: Is CDA uncon. Vague? 6. Holding: Yes, b/c key terms (indecent and patently offensive) are undefined (vague) 7. Why is vagueness a problem? a. Content based speech restriction b. Criminal statute ii. Ashcroft v. ACLU: Child Online Protection Act: illegal to operate a commercial website that offered material harmful to minors to those under 17 1. Third Cir. Enjoined, since Millers contemporary community stds provision, in Internet context, gave veto power to most Puritan of communities 2. USSC holding: cmn stds is not too broad a. If do business there, must be sensitive to stds. b. But court expresses no view re: i. Overbreadth for other reasons ii. Vagueness iii. Whether act survives strict scrutiny c. And injunction not lifted III. VIOLENCE a. Introduction i. Mischief =collision of protecting free speech and protecting individuals of negligence (or intentional misconduct of others) ii. Mischief afoot = intent to create a riot through speech. iii. Who is responsible for the violence/damage? b. First Amendment i. Congress shall make no law 1. Applies to private action because use powersn and offices of the govt to enforce private actions of the 1st amendment ii. Fighting Words: Brandenburg v. Ohio: Rule: Fighting words- speech that is directed to and likely to produce imminent lawless action. And is unconstitutional. 1. Hypo: Hitler was in jail and wrote Mien Kaumf, discussing Germanys war and the fate of inferior people ,which becomes a best seller. Hitler became chancellor of Germany after that, and WWII started 6 years after that. There was not enough imminence in provoking the violence 2. Hecklers Veto: Even if the speech has the effect of creating imminent violence, you cannot have your speech suppressed b/c of what an opponent does. a. Rationale: then opponent can stop any free speech if you disagree.

b. Hypo: MLK leads voting rights speech in Selma. People are upset at these events. Some white peole are upset at one demonstration and they riot and start ruining the town and burn a black guys house. MLK arg: speech directed at black audeience. c. Tort Claims i. Negligence: 1. Elements a. Duty to warn i. Was it foreseeable? expectation that this violence would occur 1. Tarasoff: Special relationship b/w therapist and patient, so duty to warn the victim 2. Johnson: Special relationship b/w foster parents and child. b. Breach c. Causation d. Foreseeable any expectation that this violence would occur 2. Hypo/cases: a. Boulevard Nights movie about Hispanic youth gangs played a theater. A lot of gagn members went to watch the movie, and one moviegoer gets shot in the neck. He sues the movie people, b/c they should have warned the viewers. Not contending speechs content but just that they were negligent. i. Result: no tort violation ii. There was no special relationship with movie producer and every viewer b/c then there would be a flood of lawsuits and liability and no incentive to create movies b. James v. Meow Media: Basketball Diaries had a scene in it where Leo D. dreams of shotting people in a classroom and a kid did this at school. One of the familys victims sues the producers of the movie. i. Holding: No tort violation ii. Rationale: no foreseeability. Too far a leap to shooting characters in a video scene to shooting someone in class rom. 1. no special relationship c. Delgardo v. Time Warner: Theater allowed a 15 year old to watch Dead Presidents and during the movie, he says I will kill somebody and he does. The movie theater was sued. i. Holding: no tort violation ii. Note: maybe suing the parents of the shooter would have been better. ii. Product Liability and Strict Liability 1. Davidson v. Time Warner: Police Officer (P) stoped a guy. The guy kills the police officer. The guy had been listening to Tupac Shakur for hours. P argued strict liability b/c the product was defective a. Holding: The produce is fine, so no claim. You are concerned about the speech and it is protected under the 1st amendment b. Rationale: the product itself didnt harm anyone. c. Same theory used in Bball diaries and failed. iii. Defamation 1. Elements? (below) 2. Cases a. NY Times v. Sullivan: D sued NY times for defaming him. If court ruled in favor of D, then NY times would probably have no more $ to continue. iv. Intentional Incitement 1. Elemetns? 2. Cases a. Wenham v. RKO General: The Real Don Steel was a DJ. If you caught up with him during the show, you would get money. It was broadcasted during the show. Two teenagers saw the DJ so they started driving recklessly. They hit someone and hurt them. Victimis survivor sued RKO General.

i. Holding: Intentional Incitement found because radio station intended for people to do this. ii. Rationale: they glmourized law breaking and wanted people to do this. b. Rice v. Paladin Enterprises: case about a book on how to kill somebody and hire a hit man. Victim murdered by reader of the book. i. Holding: found the publisher and author liable for intentional incitement. c. Byers v. Edmonson: Natural Born Killers. A couple went on a killer spree. i. Holding: The movie did not incite because there was no intent by the producers ii. Rationale: they didnt encourage people to do it d. Jenny Jones: Schmitz has a secret admirer. The secret admirer is gay. He admits it on the show, Schmitz kills secret admirer in Detroit. i. JJs arg: it was not foreseeable that killer would have that much of extreme reaction. It was not imminent (it was 3 days later and 100 miles later. It would be different if it happened at the show. ii. Victims arg: they knew the victim and had a special relationship IV. INDIVIDUAL LIVES AS ENTERTAINMENT: Defamation, Infliction of Emotional Distress and the Right of Privacy a. Introduction i. True stories of: 1. ordinary people thrust into limelight a. Jessica McClures baby b. Ruth Shulmans car accident 2. Sensational criminals a. Menendez brothers b. Joey Buttafuoco 3. Celebrities and public figures b. Claim #1: Defamation i. Elements 1. Defedant makes a statement which is 2. of and concerning plaintiff 3. published to at least one other party 4. false AND 5. damaging to plaintiff or lowered Ps status in reputation 6. NY Times v. Sullivan: actual malice = statement made with knowledge or reckless disregard of falsity for public officials a. Curtis Publishing v. Butts: actual malice requirement applies to public figures. (college football coach) b. Gertz: For private individuals, the standard for defamation is negligence. (lawyer, commy) ii. Defenses 1. Fair comment/good faith mistake 2. First Amendment 3. parody iii. Public Policy 1. Is actual malice a fair rule? a. Low recovery rates for Plaintiffs b. Contrast experience in other countries (UK) c. Does actual malice std. fairly compensate P? i. Yes, because public individuals voluntarily put themselves in the public so they are more likely to be subjected to being written about. ii. Private individuals have less recourse. They cant go into the public and rebut the information.

iv. Cases 1. Gertz v. Robert Welch Inc: Magazine claimed that P (lawyer) was a part of communist conspiracy to kill a person. Gertz was a private individual so the std. for defamation for a private individual is negligence. 2. Davis. V. Costa Gavras: P (Ray Davis) headed US military in chile. Charles Horman killed during Pinochet coup. Thomas Hausers book accused US of approving murder of Charles Horman. Movie Missing was based on the book. Fictionalized scenes and telescoped facts. Characters name was Ray Tower. Davis sued for libel. a. Holding: ? was there defamation? 3. Springer v. Viking Press: Springer (student at Columbia) dated novelist, Tine, and assisted on his book, State of Grace. After break up, Tine added chapter depicting Lisa Blake as whore of main character, an Italian industrialist. Several similarities to P. a. Holding: not enough similarities to be defmation. 4. Fetler v. Houghton Mifflin Co.: Andrew Fetler wrote The Travelers. Main Character Maxim eagerly cooperated with Nazis and abandoned father on death bed. Andrew Fetlers brother sued. Several similarities b/w book and fact a. Holding: similarities were enough to be statement regarding P, defmation was found. 5. Bindrim v. Mitchell: P, a psychologist, used nude encounter group therapy called Touching. Novelist attends session after promising not to write about it. Later novel (touching) depicts Ps character using sexually explicit and profane language about a clergyman-patient. a. Holding: Defamation found because id wasnt in question and statements made were defamatory. b. Harvey says: Court influenced by the fact that she expressly promised not to write about it but she still did. She breached her contractual obligation. v. Issue: Does fiction (docudrama, novels) defame when using a real person? 1. No, not where the identity is not clear (like in Davis, Springer) 2. Possibly, where identity is obvious (Fetler) and defendant violated promise (Bindrim) 3. A parody is a defense (geary) c. Intentional Infliction of Emotional Distress i. Elements 1. D acts intentionally or recklessly 2. Ds conduct is outrageous or extreme 3. Causing severe emotional distress ii. Defenses 1. Actual malice of public officials and public figures Hustler Magazine v. Falwell (Falwell talks about his first time) iii. Cases 1. Flynt (Hustler) v. Falwell: Hustler magazine wrote an ad about his first time and it was suppose tbe a joke. a. Holding: i. Defamation not found b/c no sane person would take it seriously. (Harvey disagrees b/c there was malice) ii. IIED: 2. Geary v. Goldstein: Midnight Blue Tv show paraodies bread ad with You can have it in America! tagline. Parody uses ads voice over, pictures of P model, and porno scenes. a. Holding: i. Defamation not found b/c parody and no one believes its true ii. False light invasion of privacy iii. IIED: d. Right of Privacy

d. What does actual malice std. require in practice? e. Does this test chill free speech?

i. Introduction 1. Warren & Brandeis: concern about yellow journalism intrusion 2. Prosser: unr/s intrusion on solitude 4 types a. Unr/s intrusion on solitude b. Public disclosure of embarrassing private facts c. false light depiction d. Use of name, likeness and identity without consent ii. Privacy Claim #1: Elements of Intrusion 1. Intrusion upon solitude or seclusion, or private affairs and concerns 2. under conditions highly offensive to a reasonable person iii. NOT a defensive for intrusion 1. Newsworthiness (see Shulman) iv. Cases about Press Intrusion 1. Wilson v. layne: CBS was with police to criminals parents home and the criminal wasnt there. a. Rule: Right of residential privacy at core of 4th Amendment 2. Hanlon v. Berger: CNN went on ride along on federal wildlife. a. Rule: good police P.R. doesnt justify ride-along intrusion into a private home v. Case about Private Figures 1. Dietemann v. Time Inc.: Life magazine series on quackery. P pictured being arrested. Reporters cooperated with LA DA pretended to be patients, bugged conversation with P. a. Holding: surreptitious recording causing emotional distress is actionable 2. Shulmann v. Group W. Prods.: Jaws of life freeway rescue. Victim to paramedic says: I just want to die. Film and tape recording shown on TV. a. Holding: invasion of privacy found. i. Intrusion on seclusion claim raised triable issues of fact b. Rule: Publication of newsworthy private facts is permitted, but not clear if it is a defense to intrusion. 3. Desknick v. ABC: cataract surgeon allows filming on strength of promise of no ambush journalism. ABC sends fake patients, hidden cameras. a. Is it newsworthy? 4. Bindrim v. Mitchell: Did psychologist have a legitimate intrusion claim? 5. Micki Free of Deadbeat Dads- intrusion vi. Case about Public Figures 1. Galella v. Onassis: Paprazzo targeted Jackie Kennedy Onassis. Obstructed John, Jrs path, arrested secret service, acquitted. Sued for malicious prosecution; Onassis counterclaimed for invasion of privacy. a. Holding: TC and 2nd Cir. Enjoined Galella 2. Kerby v. Hal Roach studios: To promote movie, studio sent fake letters from Marion Kerby to 1000 households. Privacy suit by real Marion Kerby. a. Defenses: i. Nothing salacious, suggestive or immoral ii. Letter was plainly an advertisement iii. No intention to target or embarrass P 3. Gritzke v. MRA Holdings: P attends Mardi Gras, bares breasts for show in New Orleans. Shes in Girls Gone Wild unknown to her. a. Ds Defense: P sacrificed her right to privacy by her conduct. She had no r/s expectation of privacy. (it was laughable expectation) b. Resultultimately settled. vii. Privacy Claim #2: Public Disclosure of true but embarrassing private facts 1. Elements a. Publicity concerns matters of Ps private life b. Publication would be highly offensive to a r/s person of ordinary sensibilities

c. Causation damages 2. Defense a. First Amendment if matter of legitimate public concern (newsworthy) Ps burden i. Definition of news worthy in CA: 1. What is the social value of the facts being published? 2. How deeply does the article intrude into private affairs? 3. Did the P voluntarily exceed to a position of public norierty? 3. Cases a. Diaz v. Oakland Tribune: College of Alameda student body president has had sex change operation (Antonio to Toni). Tribune reporter outs Diaz that discovers through an arrest record. She kept it a secret from everyone. i. Holding: Diaz proved it was not newsworthy to publish things about her gender. ii. Rationale: Court also ruled that her gender had not connection with her ability to be Student body president 1. Court also said her being the first female student body president didnt open her entire life for examination b. Ross v. Midwest Cmn: Award-winning documentary proved innocence of convicted rapist (Fossum). M.O. of two rapes for which Fossum convicted identical to Ps rape, yet P said Fossum not her rapist in a line up. Details of her identity (first name and photo of her house) was disclosed and she sued for invasion of privacy. i. Holding: it was okay to reveal the facts because it was News worthy ii. Rationale: 1. more credibility to newspaper if you use real names 2. details of rape were important as it helped prove Fossum was innocent and it was a real public concern c. Macon Telegraph v. Tatum: Nancy Tatum kills nighttime intruder. Approaches her with a knife, sexual intent. Georgia statute prohibits publication of names of victims of sexual assault. Newspaper gets tatums name and address from police, publishes story anyways. i. Holding: It was not private because it was made available to reporter. d. Sipple v. Chronicle Publishing: Herb Caen column outs hero of Gerald Fords assassination attempt. Other papers pick up story. i. Holding: It is not really a private fact b/c he is Harvey Milk supporter and marches in gay parade. 1. He argues that it was public locally, but not public all over the country. e. Haynes v. Alfread A Knopf: Reformed Luther Daniels and new wife Dorthy sued for invasion of privacy. Book details Luthers sex life with Dorthy while married to Ruby and abandonment of his family. Details were disclosed in the court documents in divorce case. i. Holding: The details were not privat ii. But, once it is in the public eye, does it mean you are always in the public eye? f. De Gregaorio v. CBS: Couples in love in NY tv story depicted Plaintiffs hand in hand. In fact, man was married to someone else and woman was engaged. i. Holding: no violation ii. Rationale: romance is public interest and his appearance was incidental viii. Privacy Claim #3: False light portrayals 1. Introduction a. Definition: Publication of untrue statements which place P in false light in the public eye i. Time v. Hill: applied actual malice standard to false light privacy b. Public Policy: whether there is a need for false light protection or is defamation adequate? 2. Cases a. Spahn v. Julian Messner i. Facts: fictionalized biography of baseball pitcher Warren Spahn aimed at children. Author made a series of imaginary events.

ii. Holding: invasion of privacy (NY Civ Rights) 1. even after Hill, Spahn was invasion of privacy b. Perfect Storm- Is False Light Claim descendible? i. Facts: Billy family sued over the Perfect Storms depiction of their late father. They also said that they were in the movie at their dads funeral (this was only briefly) ii. Holding: false light claim is personal to the holder and it is not descendible iii. Rationale: there was no public disclosure of private facts because no true facts were shown. c. Gertz v. Robert Welch Inc- Public Figure? i. Public Figure Rule: Can become a public figure either: 1. for all purposes and in all contexts because of such pervasive fame and notoriety; or 2. With respect to particular set of facts, where a. Voluntarily inject oneself into or are b. Drawn into a public controversy ii. Timing of Public Figure: Once a public figure for all purposes and in all contexts always one. 1. If a public figure for a limited purpose, not always one: a. Court reluctant to find that person has voluntarily injected self into controversy b. Even less likely to find persons drawn into controversy involuntarily: Time v. Firestone d. Dresbach v. Double Day & Co. i. Facts: Wayne Dresbach murders parents. Brother Lee was subject of book. Lee shuns Wayne. Wayne was unsupportive of brother. Life for Death chronicles story 20 years later. Lee sues for invasion of privacy by 1. publication of embarrassing private facts a. has the passage of time rendered private those facts here, the events surrounding Waynes crime which were once of legitimate public interest? 2. false light publication of untrue facts a. Is Lee still a public figure? i. Can D isolate a public controversy? ii. Does outcome affect the general public? iii. Has plaintiff thrust himself into forefront of public controversy or been drawn in, such that he will become a factor in its ultimate resolution? b. Why does this matter? ii. Issue: whether he had the ability to sue since trying to go into his private life? iii. Holding: he is still a public figure iv. Public Policy: 1. Does Lee enjoy privacy for events occurring after the crime? Should he? e. Street v. NBC i. Facts: Victoria Price Street accuser in Scottsboro, AL rape trials. TV drama made 40 years later depicted Street as prostitute who falsely claimed rape. Street sues; ii. Issue: is she still a public figure? iii. ??? f. A Few Good Men i. Facts: Code Red depiction of Marines in Cuba. Aaron Sorkin writes A Few Good Men based on this incident and trial. Actual case: No death, honorable discharge. Suit by Marines. ii. Claims 1. False light ix. Privacy Claim #4: Use of identity without permission (i.e. right of publicity) 1. Introduction and History

Species of privacy (Warren & Brandeis, 1890, Prosser) State law right Crazy quilt of protection. What is identity? i. Some types: name, portrait, picture, voice, signature, achievements (not statutory rights, but it is in case law), likeness attributes of personality, impersonator, catch phrase (heres Johnny!) ii. How narrow should it be? Just using name? 1. In NY, it is very narrow. (name, portrait, picture, voice) 2. In CA, it is very broad f. Public Policy/Rationale i. Protecting celebrities right to capitalize on their property/labor/goodwill (unjust enrichment) ii. Prevent consumer confusion iii. Promoting the arts (economic) and no incentive to crfeate unique and entertainment experience iv. Fundamental fairness (protect celebrities persona) g. Defenses i. Parody ii. 1st Amendment h. From Roberson to Haelen i. 1902: Roberson v. Rochester Folding Box no common law right of privacy in NY ii. 1903: NY enacts statutory right prohibiting use of name, portrait, picture iii. 1905: Pavesich v. N.E. Life: Georgia recognizes common law privacy righ iv. 1940: College QB at Christian school. Pabst beer uses this pic for their ad. There is no privacy violtion b/c he authorized 100s uses of his image already. He didnt authorize Pabst. He didnt expressly support it. Mae West and Babe Ruther never had protection b/c of this. v. 1953: Haelen v. Topps: 2nd Cir. Recognizes distinct property-like right of publicity 2. Cases a. Zacchini v. Scripps-Howard i. Facts: Ohio TV station filmed and showed entire 15 second human cannonball act. ii. Holding: found violation of right of publicity. iii. Rationale: 1. protecting his property rights 2. economic/incentive promote the arts iv. Importance: the news used the entire act in there 1. If the news people used a portion of the act, then it would be protected under 1st amendment a. It would encourage people to watch the whole thing in person by paying money b. They took the heart of his performance v. Dissent Brennan 1. chilling effect on the media. Substitution of still pictures would be lessening of the press. vi. Concurring Brennan and Marshall 1. No limitation on press. b. Parks v. LaFace Records i. Facts: Outkasts song Rosa Parks did not in lyrics mention Parks or civil rights matters.. References refusal to move to the back of the bus. Parks sued Outkast. ii. Claims: Right of publicity

a. b. c. d. e.

What is it? Right to control commercial exploitation of ones identity. And it is descendible.

iii. Lower Court: found artistic use in lower court. iv. Holding: reversed. Violation of right of publicity. v. Rationale: her name was not wholly unrelated, so it should go to trial. 3. Cases about celebrities in commercial art a. ETW v. Jireh Productions (Tiger Woods case) i. Facts: Rick Rush, Americas Sports Artist, paints The Masters of Augusta. Produces 700 serigraphs @ $500 each and 4300 lithographs @ $15 each. The pictures depicted his achievements. ii. Sadderup Test: not a mere literal likeness of Mr. Woods. iii. Holding: no violation, because it was creative and transformative 4. Case about phrases a. Carson v. Heres Johnny Portable Toilets (Phrases?) i. Facts: Worlds Foremost Commodian No TM infringement. Who owns Heres Johnny? ii. Holding: this is of identity and this goes to Johnnys identity iii. Dissent: 1. The phrase is too broad. 2. There is no policy support. 3. This gives a monopoly to a person to use a lexicon that no one else can. iv. Hypos: Nicknames protectable Crazylegs Hirsch and Muhammed The Greatest Ali. 1. Clint Eastwood: Make my day vitamins 2. George H.W. Bush: Read my lips lipstick? 5. Cases about sound/voice- alike a. Oliveira v. Frito-Lay (New York) i. Facts: Missy Piggy commercial for Baked Lays. Right of publicity for her voice? ii. Holding: she lost, because it was NY b. Midler v. Ford Motor (Ca) i. Facts: Midler refused to do an ad, agency recruited a backup singer to sound like her. They did not get the CR for the sound recording, only the song and lyrics. ii. Holding: violation. (would have been in common law) iii. Statute 3344: goes specifically to a person (not just a celebrity) stops someone from using name, photo, and voice. Protect your image and goodwill. c. Waits v. Frito-Lay (9th Cir) i. Facts: P sued the snack food manufacturere and its advertising agency for voice misappropriation and false endorsement following the broadcast of a radio commercial for Doritos which featured a vocal performance imitating Waits raspy singing voice. ii. Holding: for Waits. Violation of sound-alike 6. Cases about Look-alikes a. Onassis v. Christian Dior (picture or portrait; look alikes under NY) i. Facts: Dior ad campaign Design for Living. Featured pictures of well-known personalities. Barbara Reynolds, Jackie look-alike, in ad. Generated widespread news comment and a surge in Dior sales. Onassis sued privacy and publicity claims. ii. Holding: Onassis won. iii. Rule: In NY, a look-alike in a commercial ad was a violation of a right of publicity. 7. Case about Likeness a. White v. Samsung Electronics i. Facts: Samsun ran ads depicting their products being used in the distant future. Vanna White ad showed her as a robot. She claimed misappropriate of her publicity. ii. Holding: 9th circuit found for Vanna and found misappropriation. iii. Importance of this case: CA is going so far!

iv. Dissent Kozinski: 1. what about parody!? 2. somethinv very dangerous is going on. We are overprotecting things. We are going to kill the goose that gave us the golden egg. It is not good policy. b. Wendt v. Host Intl Inc i. Facts: Host put Hank and Bob robots in Cheers airport bars, looked like Norm and Cliff. Host had license from TV producers. Wendt and Ratzenberger (the actors) filed suit. ii. Host had license from TV producers. iii. District Court twice dismissed. Ninth Circuit twice reversed. Violation found. 8. Limits on the Right of Publicity a. First Amendment Montana v. Mercury News with Eastwood b. First sale Allison v. Vintage Sports Plaques c. Copyright preemption Ahn v. Midway d. Fair use i. NY Magazine v. MTA 1. Facts: NY Magazine ran bus-side ads claiming to be possibly the only good thing in NY Rudy hasnt taken credit for. Guiliani has MTA drop ad campaign. Magazine sues. 2. Holding: ??? V. USER GENERATED CONTENT a. Introduction i. Mei-lan stark (Fox Entertainment Group) b. UGC - created by end users rather than traditional media producers i. Social networking (Myspace, FB) ii. Blogs iii. Podcasts iv. Consumer reviews v. Photo sharing (i.e. photobucket) vi. Video posting vii. MMOG c. Digital Millenium CR Act i. 17 USC 512(a)-(d) 1. Threshold requirements for Safe Harbor a. Be a service provider b. Adopt, reasonably implement and inform subscribers of a policy providing that it may, in appropriate circumstances, terminate accounts of repeat infringers c. Service provider is also obliged to accommodate and must not interfere with standard technical measures used by CR owners to identify or protect CR works 2. Safe harbors to shield ISPs for the following a. Transitory digital network communications b. System caching c. Infromation residing on systems or networks at the directo of users (UGC) and d. Information location tools (i.e. search engines) ii. Purpose: Balance b/w ISP v. CR infringement iii. To enjoy safeharbor protection ISP must demonstrate 1. (1) does not know of infringement; or 2. (2) acts expeditiously to remove or disable access to the material when it a. (a) has actual knowledge , b. (b) is aware of facts or circumstances from which infringing activity is apparent, or

iv.

v.

vi.

vii.

viii. ix.

c. (c) has received DMCA-compliant notice; and 3. (3) either down not have the right and ability to control the infringing activity, or if it does that it does not receive a financial benefit directly attributable to the infringing activity. DMCA pitfalls 1. Definitional issues? a. What constitutes repeat infringer? b. What is reasonably implemented? c. What constitutes appropriate circumstances for termatinoaion of a user's account 2. CC Bill v. Perfect 10 a. it was reasonable - notification system, b. Facts: A lot of other websites were using D's pics on their site. P was providing the web services and billing services to people who ut this infringing content on their websites. c. Issue: Does CCBill fall under the safe harbor statute of the DMCA? d. Holding: Yes, it does fall under safe harbor e. Rationale: not directly attributed to the infringing activity i. The question is whether infringing activity constitutes a ddraw for subscribers not just an added benefit ii. In cc bill, since the hosting D did so for a fee unrelated to the amount of infringing material, DMCA - Financial Benefit 1. ISP can avail itself of DMCA safe harbor provided that it a. "received no financial benefit directly attributable to infrining activity, b. in a case in which the service provider has the right and ability to control such activity." 512(c)(1)(B) 2. you need BOTH! 3. This is instrumental in a lot of cases. 4. 9th circuit provided limited guidance on this issue in Perfect 10 v. CCBill LLC IO Group v. Veoh Networks 1. Facts: Adult entertainment producer filed action against online video service provider alleging CR infringement. P discovers that clips from 10 of its CR films had been uploaded and viewed on Ds website with permission. D claimed it qualified for safeharbor under DMCA. a. Safe Harbor does not immunize online service providers from liability, they provide CR owners with limited injunctive relief 2. Rationale: the site's main purpose is not to factilitate infringing content (like Napster was) Viacom v. YouTube (SDNY): 1. CR infringement related to unauthorized display, performance and reproduction of Viacom owned videos a. Inducement of CR infringement b. Contributory infringement c. Vicarious infringement 2. Safe Harbor Arguments a. Benefiting financially because putting up banner ads and getting more hits and more traffic to site from infringing activities b. They have a take down policy www.ugcprinciples.com Enforcement 1. Sending letters 2. You have to think about ramifications with public, chilling effects 3. EFF sues over zealous takedowns and IP bullys a. So now there is a hotline if you feel it got taken down improperly and put up agin right away b. Automated take downs could be bad and too overbraod.

VI.

COPYRIGHT a. Why Protect CR? i. US Con. Art 1, section 8 grants Congress the power to promote the progress of Science and useful Arts by secure for a limited time to authors and inventors, the exclusive right to their respective writings and discoveries. ii. Historical source of Statue of Anne, 1710: moved govt monopoly on printing process to authors limited, private monopoly iii. Enriching the public domain iv. Encouraging creativity. b. Copyright Subject Matter i. CR Subject Matter History 1. 1790: Books, maps charts 2. 1802: Prints 3. 1831: Musical Compositions 4. 1856: Dramatic Compositions 5. 1865: Photographs 6. 1870: Paintings, drawings, sculpture 7. 1912: Motion Pictures 8. 1972: Sound recordings 9. 1976: Television and Cable Broadcasts ii. Originality 1. No aesthetic quality requirement (Bleistein) a. Issue: whether a painting used commercially (as an ad) still qualified for Copyright? b. Holding: t it does, noting that a picture is a picture even if it is used for advertisement. c. Rationale: we dont want judges deciding which art is good and which is not. 2. There are two elements that must be met before a work can be copyrightable a. Original i. Why? Encourages the creation of new works of enriching the public domain i. Facts not covered - Feist 1. Telephone directory are not CR because they are not original, they are merely facts. 2. Rationale: We do not want facts as CR because it would hinder enriching the public domain. ii. Research 1. tough to argue b/c then people would be stopped from using facts 2. Just b/c you are first to report something doesnt mean you get a CR on it 3. Miller v. Universal Studios (Research): a. Facts: Kidnapped victim was buried alive. The story was publcished in 1981 under 82 hours until dawn heading. Later on, an ABC movie was created. b. Issue: Does docudrama infringe CR of prior books treatment of sensational facts? c. Holding: the movie did not infringe the CR of the book because the book was made up of true facts. d. Rationale: CR protects expression not the idea. iii. Historical facts are not C/R Armistad 1. In this case, the court held that historical facts are not copyrightable. Generally you cannot prevent people from referring to history. b. Fixed i. Why? For something to be copyrightable, it must be fixed in a tangible medium of expression. The idea needs to be fixed so that we can know what the work is. ii. Choreography is CR Horgan 1. Facts: Choreography of the Nutcracker was put in a coffee table book and captured the images of the dancers.

iii. iv.

v.

vi.

2. Issue: whether or not the book infringed the CR of the dance. a. Does it go to the heart of the work or capture the essence of the work to be considered infringement? 3. Ps arg: the defendants work was an infringing work because it was a copy and it portrayed the essence of the dance, or in the alternative, that the book was an infringing derivative work with the key test for infringement being not whether the original work may be reproduced from the copy, but whether the alleged copy is substantially similar to the original. 4. lower court: District court denied claim because the dance could not be recreated from the book. 5. Holding: still photographs can infringe choreography, and sent the case back for a full trial of whether there was sufficient quantity and sequency of the ballets choreography to constitute infringement, and even if so, was this protected as fair use. Figure Skating?? 1. Probably similar to Dance choreography Stage Directions and Staging arrangements 1. Authors or contributors to a work? 2. Is it on stage for like an hour or five hours? 3. Quiet similar to the dance and figure skating. Photographs are CR Burrows-Giles v. Sarony 1. Facts: Sarony took Wildes picture in 1882, lithographer produced 85,000 copies. 2. Holding: photographs are copyrightable subject mater, and photographer is author 3. Rationale: the work is original because the photographer owns original mental composition and fixed it by posing him, selecting costume, accessories, draping, arranging the light/shade, evoking the expression. 4. Anti arg: The arguments against were that photographs are just a reproduction of reality and there is no originality when it comes to just taking a picture of something that is right in front of you. Debatable CR subject matters. 1. David Lettermans top 10 lists a. The concept of a top 10 list is not CR b. But the topic and the actual 10 reasons might be 2. Vanna Whites Wheel of Fortune routine a. Not copyrightable, even if scripted 3. Paladins character in Have Gun, will travel a. The character is not really fixed. 4. Obscene (Behind the Green Door) a. Plaintiffs movie, Behind the Green Door, was shown in defendants movie theater, without license from or payment to the plaintiffs. b. In response to the suit for infringement of the plaintiffs public performance right in its movie products, the defendants raised the issue that Behind the Green Door had been found to be obscene by a trial judge. c. The courts have held that obscenity is not an affirmative defense. 5. Mario Zacchinis human cannonball act

c. Elements to Prove Copyright Infringement i. Plaintiff Owns Copyright 1. Registration = go to court and statutory damages ii. Defendant copied Work 1. Defendant had access to plaintiffs work

a. Subconscious Access Bright Tunes and Three Boys Music v. Bolton: Plaintiff claimed that my sweet lord was copied from hes so fine. i. Holding: there is no explanation but that the work was copied because it was so similar. b. Is access less important where the similarity is striking? Selle v. Gibb: Plaintiff recorded Let it End and sent it to record companies to have it recorded but none was willing to do that. Then, in May 1978, Selle saw the movie Saturday Night Fever which featured a new Bee Gees Song, whose music he thought was identical to his own. i. Holding: that although it is frequently been written that striking similarity alone can establish access, the plaintiff must always present sufficient evidence to support a reasonable possibility of access. c. Is similarity less important when a high degree of access is shown? Swirsky v. Carey: d. Original authors access: Fogarty v. Fantasy: This involved that case of a defendant, who had written a song wit his old band, and the CR was with the recording company, and 10 years later, he wrote another song which sounded similar. i. Issue: whether the requirement of similarity should be lessened because of the clear access that the defendant had to his previous work. e. Corporations: Silberstein dba Ivy Supersonic v. Fox Entertainment: P regularly pitched squat scrat product to FFW but they were never persuaded to but it, but around the same time, she was making pitches, 20th century branch made Ice Age. i. There was a lack of news traded for the other company. ii. Two different entities. 2. Defendants work is substantially similar a. Abstractions Test Learned Hand in Nichols v. Universal Pictures: i. Facts: Learned Hand undertook a detailed comparison of a play, Abies Irish rose, and a movie, The cohens and The kellys, which allegedly copied the play. ii. Under the abstractions test: Upon a work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. iii. There is a point in this series of abstractions where they are no longer protected, since other the playwright could prevent the use of his ideas to which apart from their expression, his property is never extended.

COPYRIGHT Limits and Idea/Expression a. Idea/Expression Dichotomy i. An idea is not protecteable, however its expression it. Things to think about when dealing with this dichotomy. i. Does it work? And Is it a practical test. 1. It is sound policy because if you can copyright ideas, then thee is no stopping them. 2. No one should have a monopoly on an idea. ii. Under CR act, ideas do not receive protection. It is only the expression of an idea that is protected. The line between idea and expression, however, is rarely easy one to draw. At stake is whether CR monopoly will extend too far and stifle creativity by preventing later artists and musicians from making use of ideas that came before them. Of particular concern is whether CR precludes use of dramatic and memorable scense and characters in later storesi whose overall themes and feel are quite different. iii. Beal v. Paramount Pictures Arab Heart v. Coming to America 1. Arab Heart is a book that opened with a prince coming to America because his grandfather wanted him to come get an education in the U.S. while the prince is in Atlanta, he has feelings for two women and eventually chooses to be with Flora.

Notwithstanding his grandfathers wish that the prince return for an arranged marriage, he marries Flora. Coming to America, is about a prince that comes to America with his best friend to find love. The prince sees a girl at a black awareness rally, and decides to acquire a job in her fathers fast food restaurant, to get to meet her. Lisa discovers the princes indentity and turns away his marriage proposal but they were reunited in a surprise wedding at the end. a. Book does not say how the court found b. Limitations On Copyright: Scenes-a-faire i. Definition: Scenes-a-faire are defined as incidents, characters, or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic. ii. Alexander v. Haley: dealing with the claim that Alex Haleys book and television show, Roots, had unlawfully drawn upon material in plaintiffs earlier book, Jubilee, involving fleeing slaves pursued by dogs through the woods, sex between male slave owners and female salves, auction sales of slave children away from their families, and so on. i. Holding: CR protection is not extended to such story parts and thus they are available to other authors for use in later works. iii. Burgess v. Chase-Riboud: Involving fictionalized counts of Thomas Jeffersons alleged sexual relationship with his slave i. Book does not say how this was resolved. But I am guessing that the courts found not copyrightable. ii. Holding: not simply scenes that were copied but reproduced certain scenes and situations. There was infringement. iv. Walker v. Time Life Films: dealing with the claim that the movie Fort Apache: The Bronx had copied the book, Fort Apache. Both works contains a murder of a black and a white policeman with a handgun at close range, cockfights, drugs, stripped cars, prostitutes and rats; both feature as central characters third-or fourth generation Irish policemen who live in Queens and frequently drink; both show disgruntled , demoralized police officers and unsuccessful foot chases of fleeing criminals. i. Holding: these similarities related to uncopyrightable material. c. Limitations On Copyright: Limited Protection for Characters i. Rule: Characters with a lot of development usually will get CR protection i. Cant use more than general types of ideas and cannot appropriate pictorial and literary details. ii. Warner Bros v. Columbia Broadcasting System i. Facts: The case turned on the terms of an agreement whereby the author had sold Warner the copyright to make a film of his book The Maltese Falcon, whose principal character was the detective, Sam Spade. ii. In this case, the court expressly the view that characters enjoyed qualitatively less copyright protection than other features of a story. iii. Issue: whether the author had thereby surrendered the right to author future dective stories starring Spade by licensing out the book? iv. Holding; if the character really constitutes the story being told, he will be within the area of protection afforded copyright by Congress. iii. Walt Disney Production v. AirPirates i. Facts: adult spoof of Disney cartoon characters ii. Holding: cartoon characters were copyrightable, and that Disneys characters had been violated by their bawdy depiction in defendants adult comic books as actice members of a freethinking, promiscuous, drug-ingesting, counterculture. iii. Rationale: Donald Duck, or Mickey Mouse, unlike a literary character like Sam Spade, had a visual image rather than just a conceptual quality that made them a form of protected expression. iv. Warner Brothers v. ABC (2nd Cir. 1981) i. Facts: Plaintiffs were the owners of copyright in the character Superman. Plaintiffs brought copyright infringement claim against ABC for depicting Rapph Hinkley as Hero.

ii. Similarities between the chracters 1. Both characters are shown performing feats of miraculous strength. 2. Both wear tight acrobatic costumes 3. Both do battle with villains 4. Both fly with their arms extended in front of them and cape billowing behind them 5. Both are impervious to bullets 6. Both have X-ray type vision 7. Both have fantastic hearing and sight 8. Both fly gracefully in the night sky past a citys lit skyscrapers 9. Both lift a car with one hand 10. Both lead a double life 11. Both heros power emanates from another planet 12. Both are drawn to a mysterious spot to meet an extraterrestrial being. iii. Differences between the characters 1. In Hero, Ralph Hinkley derives his power exclusively from his magic suit, whereas in Superman, the heros strength is a natural attribute of his extraterrestrial physical makeup. 2. Supermans exploitation of his strength is controlled, whereas Ralph Hinkley struggles at times to conjure it up and at other times to contain it. 3. While Superman wears a blue leotard with red briefs, boots and cape, Ralph Hinkleys costume is a red leotard with a tunic top, no boots and a black cape. 4. Superman has mastered the art of delf-propelled flight and accomplishes the feat with grace and verve. Ralph Hinkley, on the other hand, seems to be terrified when flying and each time, without fail, crash lands. 5. Ralph Hinkley cringes and cowers in the face of gunfire, whereas superman boldly holds his ground when being fired upon. iv. Holding: the parties works were not substantially similar, and that even if they were, Hero was a parody of Superman and therefore protected under the fair use Doctrine. v. Appellate Court affirmed. vi. Rationale: concept and feel are completely different v. Detective Comics v. Bruns Publications (2d Cir. 1940) i. Facts: Court found that the defendants Wonderman infringed the copyright in the Superman comic books. ii. Holding: infringement iii. Rationale: Wondermans powers were quite similar to Similar to Supermans leading the court to note that the only real difference between the two was the color of their costumes. 1. used more than general types of ideas and appropriated pictorial and literary details embodied in the complainants CR d. Limitation on copyright: Fair Use i. Section 107 Rule: The fair use of CR work...for purposes such as criticism, comment, news reporting, teaching, scholarship, or research is not an infringement ii. Elements: i. Purpose and character of the use (commercial or non-profit) ii. Nature of the CR work (creative) iii. Amount and substantiality of the taking in relation to the work as a whole iv. Effect of use on potential market for work iii. Public Policy i. Is fair use analysis different in case of 1. NW publication? 2. historic work? 3. unpublished work? 4. unauthorized publications iv. Parody as fair use

i. Campbell v. Acuff-Rose Music 1. Facts: Roy Orbison and William Dees wrote Oh, Pretty Woman and assigned their rights to Acuff Rose. 2Live Crew wrote a song called Pretty Woman which was latere described as intended as satire. 2. Holding: No Infringement, Fair Use found. 3. Rationale: (4 factors) a. Parody has an obvious claim to transformative value. The commercial purpose of the work is not dispositive of this issue. b. The copied song falls within the core of the CR protective purposes b/c it was a creative work, but this fact is not much help in a parody case, since parodies automatically copy publicly known, expressive works. c. When parody takes aim at particular original work, parody must be able to conjure up at least enough of the original work, to make the object of the critical work recognizable. In this case, no more was taken than necessary. d. As to parody, it is more likely that the new work wont affect the original work that is cognizable under this fact. v. Derivative Work vs. Fair Use as Political Parody? i. SunTrust Bank v. Houghton Mifflin: 1. Facts: Gone with the Wind book tells story of living in the South before and after the Civil War. 6 decades later, D publishes a book called The Wind Done Gones which retold the Gone with the Wind story with the African American perspective and she gave new names to the characters with exception of Mami. The new story is a memoir of a brand new character who was the half-sister of Scarlet. 2. Holding: settled. 3. Trial Court: Far more than original was used than necessary 4. Appellate Court: very plausible fair use defense based on legal nature of parody but a full blown trial would be needed to make final determination. But the parties ended up settling. vi. Fair Use as Newsworthy? i. Michaels v. Internet Entertainment Group: 1. Facts: Pam Anderson Lee and Bret Michael videotaped themselves making love. Michaels gave a copy of the tape to friend. Friend sold copy to D (IEG). IEG posted it on Club Love internet for $180 annual subscritions. They not only increased traffic on their website but they also told Hard Copy and news about it. Michaels sued for CR infringement and personal privacy and publicity rights. 2. Issue: whether there was a fair use defense against CR claim with tape they made? 3. Ds arg: it was fair use because only a small portion of it was used and no more than taken than necessary. 4. Holding: the book does not say. But it is probably safe to say that IEG did not have a viable claim while Hard Copys claim was more likely since it was news commentary. vii. Hypos i. The Mix Tape 1. Facts: created a mix tape and passed them out at the party to her friends. 2. Elements a. Non- commercial (for D) b. Artistic work (for P) c. Everything was taken. (for P) d. Back in the day, copying one individual song didnt affect sales of the whole CD but now with iTunes where you can buy individual songs, copying one song does affect the market. (for P) ii. School Daze 1. Facts: Editing music for personal use. Distributing it to others. Selling the CD. 2. Elements

a. Same as above but now she wants to sell it, which makes it more likely that its infringing. iii. Death of an Elvis Impersonator 1. Facts: Use of Elvis Name. Performing Elvis Songs. Impersonating Elvis. 2. Elements a. Commercial (for P) b. Creative (for P) c. It depends. Did they only take what was necessary for parody? d. Doesnt affect market at all. It is completely different. iv. Lets Just be Friends 1. Facts: Extensive Use of Friends TM. Derivative works (Reproduction of Quotes and scripts). Linking Framing 2. Elements: a. Commercial. For P b. Creative. For P c. Only small portion. For D d. Doesnt really affect market. For D v. We Only Like to See you Smile 1. Facts: John McDonalds was going to call his restaurant McDonalds. 2. No, his surname needs secondary meaning. vi. Christmas Joy: 1. Facts: Neighbor videotaped person over a fence doing funny things and sent to Americas Funniest Home Videos. 2. Right of Publicity vii. Now THATs Italian 1. Facts: Used a celebrity impersonator to sound like Bette Midler and used it in a commercial for NY Pizza. 2. Elements: 3. Strong claim for right of publicity. e. Other limitations on Copyright architectural works i. Facts: Ps sculptured courtyard in LA featured in Gotham City in Batman Forever. ii. Rule: Taking pictures of architectural works is not a violation of copyright. iii. Section 120(a) of CR Act: CR in architectural work does nto prevent pictorial representation of work ENTERTAINMENT INNOVATIONS: COPYRIGHT FAIR USE IN HOME VIDEO AND DIGITIAL DISTRIBUTION AND PERFORMANCE RIGHTS PROTECTIONS a. Introduction a. Contributory Infringement i. Elements 1. Requires underlying direct infringement 2. Liability exists where D: a. With knowledge of infringing activity b. Induces, causes or materially contributes to infringement by another b. Vicarious Infringement i. Elements 1. Requires underlying direct infringement 2. established where D a. Has the right and ability to supervise the infringing activity, and b. Has a direct financial interest in the activity b. Cases a. Sony v. Universal City Studios

i. Facts: after Sony invented the Betamax, Universal sued Sony alleging CR in film products. Enabled time-shifting and librarying ii. Legal basis: 1. Studios claimed taping of the programs was illegal copying of the work that was licensed for broadcast use at specified times. 2. Sony was a participant in illegal copying b/c it sold the equipment which made it possible iii. Sonys arg: 1. watching videos at home in personal convenience was fair use 2. even if the unauthorized is not fair use, that doesnt make Sony liable for violation, b/c Sony was also selling equipment that is used for a lot of legitmate uses. iv. Holding: action for Contributory infringement, against seller of equipement in an action CR holder may not prevail unless relief he seeks only affects his program unless he speaks for virtually all CR holders with interest in outcome. 1. Some people liked time shifting. v. Fair Use Holding: Time shifting for private home use can be characterized as nonprofit activity, so it was fair use. vi. Sony Defense: If machine can be used for any legitmate reason, there is no CR infringement (i.e. photocopier) vii. Impact of Sony 1. Studios sought royalties on VCRs and tapes 2. Congress rejected: Video rental dealers 3. Irony: studios lost battle but won war a. VCR ownership from 50k (in 1975) to 10M (in 1983); now 11M per year. b. Studio revenues from rentals: $20M in 1980 (1% of total revenues); $600M in 1983 (15%); and $8B in 2000 (50%) b. A&M v. Napster i. Facts: Music Share software facilitated P2P sharing. Record companies alleged contributory and vicarious infringement. ii. Holding: P won. Entered injunction. Rejected Sony defense. iii. No safe harbor under DMCA iv. Rationale: the files were all on their server. The songs were all in one place so there was knowledge of infringement c. MGM v. Grokster i. Facts: Morpheus and FastTrack software enables direct P2P file sharing, no server conduit. ii. PP: D. Ct and 9th Cir: accepted Sony defense. iii. Holding: USSC rejected Sony defense iv. Rationale: Because evidence of intent to promote infringement exited, reversed SJ for D, b/c trying to capitalize on Napster customers v. Evidence to induce: 1. sought to attract former Napster users 2. failed to develop or offer filtering tools 3. profit through ad sales increased as software use increased. vi. Ample evidence of underlin ingfirnemnet by Grokster users vii. Policy tension in Grokster 1. Balance b/w a. Supporting creative pursuits, through strong CR protection, and b. Promoting innovation in new communication technologies by limiting liability for CR infringement c. Music CR Issues a. Section 106: Exclusive right to i. Reproduce ii. Prepare derivative work

iii. Distribute copies iv. Perform publicly (except sound recordings) v. Display publicly (except sound recordings) vi. Perform publicly via digital audio transmission (sound recordings only) b. Publicy Performance of Music i. Copyright in musicial composition 1. includes all exclusive rights from section 106 ii. Copyright in sound recording 1. only limited to performance right iii. Example: Yesterday 1. Writers (Lennon and McCartney) have exclusive performance right 2. Bands recording, howeve,r enjoys no such right c. Publishers administration rights i. Register composition for CR ii. Promote song to artists, producers, record companies iii. License song to user iv. Collect and account for royalties v. Revenues from administration 1. Mechanical royalties a. Records used to reproduced mechanically b. Royalty per record sold, usually at fraction of compulsory mechanical royalty rate c. Current compulsory rate in US (through 12/07) is greater of 9.1 cents per song or 1.75 cents per minute of playing time 2. Public performance royalties a. Blanket licenses for such uses as radio and television, night clubs, bars, websites b. Administreted in US by performance rights societies such as ASCAP, BMI, SESAC 3. sheet music royalties a. publisher paid 20% of retail price for sheet music, 10-12.5% on folios b. Writer receives 5-10 cents on sheet music, and 10% of wholesale price on folios 4. synchronization and transcription income a. Synch license permits use of composition in timed synchronization with visual images b. Transcription license permits use of composition in radio commercials 5. foreign subpublishing royalties a. Non-US mechanical royalties not per-song or per-minute, but entire album licensed for percentage of retail price b. Local subpublishers in each territory c. Mechanical royalties collected by govt owned entities 6. DART income DIGITAL SAMPLING, COPYRIGHT OWNERSHIP, JOINT AUTHORSHIP AND LICENSING A. Digital Sampling a. Grand Upright v. Warner Bros: i. Facts: Biz Markie: I need a Haircut album included song Alone Again. Used three words and some music from Gilbert OSullivans song, Alone Again (Naturally). License request rebuffed, used anywyay. ii. Holding: found CR infringement. iii. Rationale: they knew they were violating the Ps right b/c they asked and said no. iv. Claims: CR infringment b. Jarvis v. A&M Records i. Facts: Get Dumb sampled Jarvis song. Fragmented literal similarity of parts of songs.

ii. Issue: how do you determine substantial similarity? (response of ordinary lay person) iii. Ps arg: Lay person test should apply (too simple of a rule) 1. Only if the 2 songs are similar in their entirety should the Ds song be held to have infringed Ps song iv. Qualitative/quantative analysis v. Holding: Ds motion to SJ was denied on grounds that we have to look int this. vi. Real world: you hire a musicologist and she sits down and does a literal transposition and is able to look to timing and stuff to decide if there is an infringement. B. Copyright Ownership: Works Made for Hire and Joint Authorship a. Work made for hire Rule i. 1909 Act: Term not defined. Author includes employer in cases of works made for hire. 1. Courts developed instance and expense test, viz. was work performed at Ps instance and expense? ii. 1976 Act: 1. 17 USC 201(b): Either employees work within scope of employment, or work specially ordered or commissioned in one of 9 categories, if both parties execute express agreement which so recites b. CCNV v. Reid i. Facts: Sculptor Reid agrees orally to make Third World America sculpture for CCNV. CCNV conceived and assisted, Reid executed. ii. Employee or Independent contractor? Agency principles govern, relevant factors include: 1. skills required 2. source of tools 3. location of work 4. duration of relationship 5. right to assign additional projects 6. hired partys role in engaging assistants 7. is work part of employers regular business? 8. taxes withheld and benefits paid? c. Playboy v. Dumas: Complexities: i. Facts: pre-1978 Dumas drawings procured at Playboys Interest and expense, therefore works made for hire under 1909 Act. ii. Post 1977 drawings: Questions to be determined on remand: 1. endorsers authorizing work for hire? 2. Were works specially ordered/commissioned? 3. Did check legends effect assignment C. Joint Works a. Rules i. 17 USC 101: A work prepared by two or more authors wit the intention that their contributions be merged into separable or interdependent parts of a unitary whole. b. Public Policy i. must contributions be separetly CR? Yes ii. Why should this matter? 1. we dont want authors to lock themselves up and keep away from everyone to avoid someone getting interest in their work. iii. Where does this requirement come from? c. Cases i. Childress v. Taylor 1. Facts: Joint venture b/w playwright Childress and actress Taylo. Produced play about Moms Mabley. Taylor later hired another playwright and produced new play 2. Defense: was joint authorship 3. Holding: this was not a joint author.

4. Requirements: A co-authorship claimant bears the burden of establishing that each of the putative co-authors a. Made independently CR contributions to the work and b. Fully intended to be co-authors i. As to intent, the test is wehtehr tin the absence of contractual arrangements, each participant intended that all would be identified as co-authors. The intention standard is not strictly subjective. Rather, the Childress court suggested a more nuanced inquiriny into factual indicia of ownership and authorship, such as how a collaborator regarded himself in relation to the work in terms of billing and credit, decision making and the right to enter into a K. D. Copyright Licensing a. Cases i. Effects Associates v. Cohen 1. Facts: Cohen (a movie mogul) wrote directed and produced a horror movie. Cohen hired P to do footage for several special effects action sequence. Producer used footage but paid $8k less out of $64k than promised from oral contract b/c he didnt like the quality of the work; Effects said this infringed after Cohen put Ps footage in the film b/c he didnt own CR unless paid full Kd for price. 2. Ds arg: in the movie business, they do lunch not contracts. Exclusive license was granted even though it was not in writing. 3. Holding: disagreed with Ds arg, but held combination Section 101 and 204 meant that a non exclusive license could be granted orally or even implied from conduct. 4. Rationale: the fact that P had done the special effects work and handed it over to D, while later was paying a total of $56k meant that Effects was impliedly granting D a non exclusive license to incorporate footage in the movie 5. Oddo v. Reis: Implied license a. Work was requested b. Assumed there was a license c. Work made in actually used 6. Isnt an implied license an equitable remedy? If so, since Effects hadnt been paid, is this result fair? ii. Cohen v. Paramount Pictures 1. Facts: Cohen wrote Merry Go Round. Signed synch license for film Medium Cool 2. Issue: Did license cover use on videocassettes? 3. License specifically stated it would cover Exhibition by means of television 4. Holding: Exhibition by means of television cannot include videocassette reproduct b/c VCRs for home use were not invented or known when the license was executed. 5. Rationale: There was a reserved rights clause which said that any right that was not expressly granted was reserved to the owner. E. Copyright Term a. Rules i. 1909 Act: 28 year initial term, 28 year renewal term ii. 1976 Act: Life of the author plus 50 years; author and heirs enjoy termination right between 35th and 40th year. iii. Why did Congress chose to split the CR term? 1. because they wanted to preserve the CR holders rights and not be taken advantage of b/c usually when the work is fixed its hard to determine the value of the CR in that work. 2. Protectionist philosophy - producers can take advantage of authors and acts that are brand new who are too excited about signing away their rights.

iv. Art. I, Sec. 8: Limited times 1. First US CR Act: 14 years 2. 1909 Act: 28 years, plus 28 year renewal term 3. 1976 Act: Life of author + 50 years 4. Sonny Bono Act: Authors life + 70 years 5. Works made for hire now 95 years 6. Is CR a properly limited right? b. Cases i. Stewart v. Abend 1. Facts: Woolrich wrote It had to be Murder. Licensed sTewart and Hitchcock to produce movie as Rear Window. Heirs recaptured renewal term, but author had purported to assign it to producers. 2. Issue: Did authors assignment bind heirs? a. No invalid assignment 3. Holding: when author dies before original renewal period arises, his executor is entitled to the renewal rights, even though the author previously assigned his renewal rights to another party. 4. The heirs won. Not the producers. ii. Eldred v. Ashcroft 1. Facts: Potential CR life of 150 years = limited? Congress always extended life for exisiting as well as future works. Congress had the interest of following the guidelines of Europe 2. Did CR term extension violate Article I, Section 8? 3. Did it violate 1st Amendment? 4. Ginsburg arg: harmonization with other country. a. b. Disney changed law in Europe first and then asked to make it like Europe in US. c. Its in the Berne conventions d. Benfitting the big corporations like Disney 5. Breyers Dissent: a. What does Breyer consider wrong with majoritys opinion? i. Royalties, you have to keep paying if you want to use the CR ii. Search fee: the further in time CR gets, the harder it is to trace the owners iii. You are taking away new innovationauthors cant invent and give back to public domain b. What specific expression related costs will term extension? i. It will add costs, b/c people will have to pay royalties to use the characters. ii. It will also add time costs to locate who owns the works and engage in negotiations to license them (permission costs) c. What are Breyers criticisms of the majorities arg regarding the benefits of term extension? i. Benefit to create? No not benefits to the author. Benefts the heirs ii. International unity? It will keep authors here in the US. But it doesnt really conform b/c of the reasons he listed. (partial uniformity may not be as effective) iii. Incentive to republish and redistribute framers assume the disappearance of the monopoly grant would be an incentive the perpetuation of monopoly grant.

ALTERNATIVE SOURCES OF ENTERTAINMENT PROPERTY RIGHTS A. Artistic Credit a. Why is it important? i. To author & actors leads to other jobs in Hollywood. Star power affects income. ii. "Who steals my purse steals trash; 'tis something, nothing; Twas mine, tis his, and has been slave to thousands; But he that filches from me my good name robs me of that which not enriches him, and makes me poor indeed." Othello b. Legal Source of Artistic Credit i. Contracts and unions set credit requirements 1. Screen Actors Guild (SAG) 2. Writers Guild of America (WGA) 3. Directors Guild of America (DGA) 4. American Federation of Musicians ii. Lanham Act 43a prohibits false designation of origin iii. Now exclusively one of contract c. Hypo: Watchmen i. Facts: Says from visionary director of 300 on the movie poster to try to get that audience. Alan Moore wrote the graphic novel. His name is not associated with the film or in any of the credits. 1. Believes work is unfilmable 2. Signs deal to NOT receive credit for film, assigns all royalties to illustrator Dan Gibbons. ii. Director uses the novel verbatim in the movie and uses scenes exactly the same. d. Cases i. Smithers v. MGM Studios 1. Facts: Smithers in TV drama Executive Suite. He was supporting actor. The contract said he gets 4th billing and lower fee. Ultimately he receives 11th billing. MGM CEOs blacklist threat. 2. Holding: won jury award for tortuous breach of the covenant of good faith and fair dealing. 3. How does the Lanham Act fit here? a. Historically protects certain entertainment product features (e.g., fictitious characters like Harry Potter) b. Licensed merchandise a major source of ancillary revenue in filmmaking. i. Coca-Cola paid $150million for Potte c. Protect characters after CR expires. TM are forever. d. Does Section 43a apply for actors? e. Contract Issues B. Trademark/Lanham Act a. Lanham Act 43(a) reverse passing off i. What is it? 1. Any person who shall affix, apply, or annex, or use in connection with any goods or services ... a false designation of origin, or any false description or representation, including words or other symbols tending falsely to describe or represent the same, and shall cause such goods or services to enter into commerce, and any person who shall with knowledge of the falsity of such designation of origin or description or representation cause or procure the same to be transported or used in commerce ... shall be liable to a civil action by any person ... who believes that he is or is likely to be damaged by the use of such false description or representation. 2. Two types a. Express selling under anothers name b. Implied selling under unbranded state ii. Smith v. Montoro 1. Facts: Lanham Act 43(a) another credit theory: false designation of origin. Star billing contract with Italian producer. Assignees changed name to Bob Spencer. They didnt even put HIS name (Paul Smith) in the credits.

a. Reverse passing off? i. Express selling under anothers name ii. Implied selling under unbranded state 2. 9th Cir. Holding: found violation 3. Importance: Lanham Act was extended to protect this type of harm (Wrong actor cited in movie.) Passing it off as its ownlike wearing Tiffanys jewelry but passing it off as your own. iii. Lamothe v. Atlantic Recording (RATT case) 1. Facts: Lamothe, Jones and Crosby (Mac Meda) co-wrote Scene of the Crime and Im Insane. Crosby joined another band (RATT) and released sound recordings of these songs. Authorship attribution ignored Lamoth and Jones. It was only credited to Crosby. The sheet music is not at issue. Two of three joint authors did not receive credit on the sheet for sngs they co-wrong. 2. Claim: suit for false designation and reverse passing off (not clear why there was not a CR claim). 3. Crosbys defense: mere omission so this is not actionable. Since Crosby is an author it should be enough that hes on there. 4. Holding: the court disagreed. iv. Cleary v. News Corp 1. Facts: Clearly helped edit 1970 edition of Roberts Rules of Order, paid .75% royalty. Credited on 1970 and 1980 editions. Left off title page on 1990 edtion. After several revised additions to a book were made over 20 years, one of the people who helped with the book was removed from the title page. 2. Test: bodily appropriation NOT substantial similarity. a. Why? b/c wants to steer this toward section 43 claim. Not a CR claim. 3. Holding: no reverse passing off 4. Rationale: no confusion a. there has been significant changes made to the book since P worked on it, so theres little consumer confusion b. Lanham Act designed to protect consumers, not ensure artists get credit they feel morally entitled to. c. The case limited the scope of Lanham Act claims. b. Pride of Authorship i. What if the film bombs? Can the novelist sue? What theories? 1. Sahara film, based on Clive Cussler novel, considered one of the biggest financial failures in Hollywood history. 2. Matthew Maconeghy and Penelop Cruz were in it. The author didnt like Matt. 3. In the book, it said over 80M copies sold but when movie people did an audit it was only like 20M copies sold so author embellished it more. a. Movie people can claim 43(a) misrepresented readers and people who bought your book ii. What if author wants nothing to do with film? Can he have credit removed? 1. Stephen Kings The Lawnmower Man. 2. The book and movie is completely different. He doesnt deny that he wrote it but he didnt do anything with the movie. 3. The court found this is misrepresentation by including his name b/c it seems like he had some part in it. iii. What if author makes derogatory comments about casting choices before film is even completed? Studio have a claim? 1. Anne Rice made a comment about Tom Cruise in movie based on her book. 2. Her followers arent going to want to see the movie now. 3. There was probably a non-disparagement clause in the contract, therefore, Anne Rice breached her contractual duty. iv. Ghostwriting Issues

1. Using credits to sell: Iaccoca (by Lee Iaccoca), For Love Alone (by Ivana Trump) 2. Its their intent not to be credited for it. 3. Should ghost wrtier be full co-author? Or billed as with or as told to? Or judg acknowledge with special thanks in the preface? 4. Who is Lanham Act protecting here? a. Is there an interest to prevent false advertising? 5. Who is Lanham Act supposed to protect? 6. A ghost writer wrote it but then the public thinks someone else wrote it. a. Can the public sue for misrepresentation or confusion? C. Moral rights and mutilation claims a. Introduction i. Droit moral a part of civil law regimes ii. Mutilation = Prohibits post-production changes to works without authors consent; 1. What about panning and scanning movies to fit TV? 2. Colorization? Asphalt Jungle case a. Facts: suit brought in France (b/c they have moral rights) for putting color in her B&W movies. b. Holding: violation of moral rights iii. Berne Convention: Author may prohibit distortion, mutilationor other derogatory actionprejudicial to honor or reputation. b. Cases i. Granz v. Harris 1. Facts: Granz promoted and produced jazz concerts. Licensed Harris to sell recordings with credit Presented by Norman Granz Harris produced truncated versions. He credited him, but Granz thought it was falsely represented what he did b/c it wasnt the same work after the minutes were cut down. Contractual duty to use the legend presented by Norm Granz implies the duty not to sell records which make the required legend a false representation. (damned if he does, damned if he doesnt) 2. holding: remanded to see if P waived K. 3. Avon case- should Harris have done this? (Disclaimer) a. Put a disclaimer to explain they had done things to the book to explain that. b. Harris should have credited the artists and noted that the works were truncated versions and they were modified from the last versions. ii. Preminger v. Columbia Pictures Role of custom and practice (TV version) 1. Facts: Preminger directed Anatomy of a Murder. Columbia had exclusive TV rights. According to director, commercial breaks = mutilation. 2. Issue: Did Preminger get final cut as to TV as well as theatrical exhibition? 3. Holding: not a viable claim because TV version always fucks up the movie and cuts it down. 4. Rationale: it is expected. How to fit 161 minute film into 100 minutes? a. Major cuts would have been mutilation, but not sure what the court though about this. 5. Rule: It is normal custom and practice for TV to cut down films. iii. Gilliam v. ABC (compare with above) 1. Facts: Monty Pythons Flying Circus. MP supplied BBC with 30 minute episodes. BBC licensed Time-Life films to rebroadcast in US. Included right to edit for time segmentation. Time-Life sublicensed to ABC. MP sought inunctions. ABC mutilates the movie (major jokes, skits) 2. Holding: violation 3. rationale: custom and practice still applies, but unlike in Preminger, these shorts have been broadcasted on TV before without all these cuts. Also, MP was assured that their film would not be shown with significant cuts. 4. There is no moral rights in the US bring anti-competition, K, CR, TM claim 5. Concurrence: do it like Avon and put in a disclaimer D. Lessons Learned

a. Other areas of law beyond CR/Right of Publicity provide protection for artists and artistic works b. When using works of others give credit where credit is due (and if altering work, say so Avon) c. When permitting others to use your work, clearly define in writing rights granted.