Check out my recent article on New York’s proposed Deep Fakes legislation in the August 2019 edition of Electronically In Touch, the official e-newsletter and blog of the Young Lawyers Section of the New York State Bar Association. The article takes a look at the legislation in New York to reassess the right of publicity in light of developments in deep fake technology. If passed, the bill would create civil liability for celebrity deep fakes and deep fake pornography.
New Case Law in Entertainment, Media, and IP Law
- Uber’s Terms of Service are Binding whether You Read or Understood Them. The United States Court of Appeals for the Second Circuit just held a potentially landmark case in favor of apps hoping to avoid lengthy and costly public trials with their users. The court ruled that Uber’s mandatory arbitration clause is binding, even in cases where the user did not read or understand the ride-hailing app’s Terms of Service. The district court decided the clause was unenforceable because it was not reasonably conspicuous, but the appellate court disagreed. Despite the fact that users have no bargaining power to negotiate the contract’s provisions, the appellate court explained that Uber’s ToS were easily accessible from the app, since the additional terms were available to the user by visiting Uber’s website via hyperlink. The case will likely be cited by other apps – especially those that use “sign-in wraps” where users agree to the terms by registering for the app – to show that the user was on inquiry notice. Apps should be advised that courts may still find for users if the link to their ToS is not sufficiently conspicuous, such as the small link on Amazon’s cluttered page at issue in Nicosia v. Amazon.
- Patent for Podcasting Invalidated. The United States Court of Appeals for the Federal Circuit affirmed the United States Patent and Trademark Office’s decision to invalidate a patent for podcasting, since podcasting existed in the prior art when the patent owner filed for the patent.
- The Right to Record the Police has its Limits. The United States Court of Appeals for the Eighth Circuit recently upheld a lower court’s ruling that dismissed an activist’s First Amendment claim that he had a constitutional right to record another citizen filing a complaint in the lobby of the police department. The constitution protects the right to record police officers acting in their official capacity in public spaces, as a mechanism of monitoring how police exercise the power the public grants them. Some media rights organizations are not afraid the ruling will be abused in future cases, and instead believe the case is in line with precedent that holds there is no general right to be where the news is. However, some were hopeful the right to record police in public spaces could be expanded to provide a right to access other official proceedings.
- Secondary Copyright Infringement is a Crime. The United States District Court for the Northern District of Illinois potentially ended debate about whether secondary copyright infringement is a crime by deciding the founder of KickassTorrents was properly indicted. Despite the defendant residing in Poland, the court found his actions were sufficient to sustain the Government’s theory that the defendant was aiding, abetting, and conspiring with users in the United States who pirated copyrighted television, movies, music, and more.
- Florida Judge will not be Disqualified for Social Media Connection with Lawyer. The Third District Court of Appeal in Florida has held that a judge will not be disqualified from a case simply because she is Facebook friends with a lawyer representing one of the parties. The court explained that social media connections do not automatically denote a close relationship between the judge and lawyer, so a basis for disqualification can only be established with more evidence. The case stands in contrast with ethics opinions and another Florida case where recusal was required where the judge was Facebook friends with the prosecutor. Florida has some of the most restrictive guidelines on judicial use of social media of the eleven states that have issued such guidelines.
- Sarah Palin’s Defamation Lawsuit against the New York Times was Tossed. The United States District Court for the Southern District of New York threw out a defamation lawsuit against the New York Times for an editorial that stated a link existed between a map distributed by Sarah Palin’s PAC in 2010 and the shooting of Rep. Gabby Giffords in 2011. Two days after the initial publication, the New York Times issued a clarification denying the existence of any link between the two. While the judge agreed that the newspaper may have acted negligently, he disagreed with the Alaskan governor’s argument that the New York Times acted with the actual malice necessary to maintain a defamation claim against a public figure. The judge explained that no legal redress was permissible for this mistake, since Palin failed to admit any evidence necessary to establish that the newspaper made the mistake with knowledge of falsity or a reckless disregard for its falsity.
- Walt Disney Settled Infamous “Pink Slime” Lawsuit for $177 Million. Setting a record for media defamation settlements, Beef Products Inc. recently received a rather beefy pay-off from the parent company of ABC News, which aired a report that lead grocers to remove the food company’s “highly textured beef” from their shelves, causing sales to drop more than 50% to a measly 2 million pounds per week. Under South Dakota’s Agricultural Food Product Disparagement Act, Disney faced potential damages in the billions of dollars, if Beef Products was successful in court. The settlement was revealed in the media company’s most recent earnings report, but further details remain confidential.
- Statutory Claims for Tattoo Infringement against Take-Two Games Dismissed. The United States District Court for the Southern District of New York dismissed claims for statutory damages brought by Solid Oak for allegedly infringing its copyrights in the tattoos of NBA athletes featured in Take-Two’s video games. The decision potentially saves the game-maker billions of dollars. However, the copyright owner may continue to pursue claims for actual damages caused by the alleged infringement of eight tattoos. Take-Two is defending itself on fair use and de minimis use grounds. If Solid Oak is successful, it could have major ramifications for every future sports broadcast and video game.
About: DJ turned JD highlights the latest legal updates in the entertainment and media industries, intellectual property, the internet and social media. The blawg is compiled and curated by Bobby Desmond. After working as a radio personality, Bobby attended the University of Florida Levin College of Law in order to pursue an in-house legal career at an entertainment or media corporation. He has interned at PBS with America’s Public Television Stations in Arlington, VA and at AMC Networks in New York, NY. He graduated in May 2018 and passed the New York Bar Exam in July 2018.