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.
Category: Defamation
New Lawsuits in Traditional and Social Media Law
- When Life Gave Beyoncé YouTube Snippets, She Made “Lemonade.” The estate of YouTuber Messy Mya is suing the Formation singer for $20 million over three samples used in the music video of Lemonade’s lead single. The United States District Court for the Eastern District of Louisiana recently denied Beyoncé’s motion to dismiss, finding the YouTuber’s estate has sufficiently alleged that “they can recover statutory damages and attorney’s fees” for Beyoncé’s continued willful infringement of the samples. The court elaborated that Beyoncé had not shown that the estate’s requests constituted “redundant, immaterial, impertinent, or scandalous matter” sufficient to strike it from the record.
- College Football Coach’s Retweet Results in Lawsuit. Sports psychologist Dr. Keith Bell is suing King’s College and the school’s head football coach for copyright and trademark infringement, after the coach retweeted an image of a printed passage from Bell’s 1982 book, Winning Isn’t Normal. The allegedly infringing image was originally tweeted by Northeastern State University’s baseball team, which is not a part of the lawsuit.
- Breitbart Sued for Borrowing BLM and Brady Photos. In a similar social media inspired lawsuit, a freelance photojournalist is suing Breitbart for using an Instagram photo of Black Lives Matter protesters without his permission on 20 separate URLs. A Getty Images photographer also accused Breitbart of infringing its copyright in a photo of Tom Brady for embedding Gerry Images’ tweet into one of its stories.
- Multiple Defamation Suits Filed after Spree of Sexual Harassment Allegations.
- The #MeToo social media campaign has inspired hundreds of women and men to speak out about instances of sexual harassment by famous entertainers, producers, and newsmen. Now, the subjects of the claims are suing their accusers for defamation. Bill O’Reilly seeks $5 million from a man who claimed on Facebook that the former Fox News host sexually harassed his ex-girlfriend through relentless late-night phone calls. The #MeToo post also details how O’Reilly allegedly asked the poster’s ex-girlfriend to assist O’Reilly in mudding the name of a different woman who had accused him of sexual harassment.
- Harvey Weinstein, Brett Ratner, a Washington sheriff, and other alleged sexual harassers have also sued or have threatened to sue their accusers or the media organizations that published the claims.
- On the other hand, accusers are also utilizing defamation laws against the men they say sexually harassed them. For example, a former contestant on The Apprentice filed a suit against President Trump after he publicly denied the claims she lodged against him.
- Highly Controversial Steele Dossier at the Center of Multiple Defamation Claims.
- Aleksej Gubarev is suing for defamation after Buzzfeed failed to redact his name when they published the now infamous dossier about President Trump’s alleged ties to Russia. Buzzfeed’s lawyers filed a motion to compel the Department of Justice, Office of the Director of National Intelligence, James Comey, and James Clapper to answer or confirm nine questions about their role in verifying the document. While other media outlets have filed Freedom of Information Act requests to gather information about the government’s verification process, Buzzfeed’s request arguably carries more weight, since the information is necessary for its defense that their article was a “fair and accurate report of the records that were a basis of official government actions.” The news site seeks protection under Florida’s reporter privilege, common law, and the First and Fourteenth Amendments of the U.S. Constitution, while the government argues any response would require disclosing classified information.
- Buzzfeed isn’t the only party that wants answers: Gubarev is seeking to discover who provided Buzzfeed with the dossier. Fusion GPS, the firm hired to investigate Trump’s ties to Russia, and Christopher Steele, the document’s author, both deny being the source.
- Separately, three owners of Russia’s largest commercial bank have filed their own suit against the firm and the document’s financier Glenn Simpson, in addition to their existing defamation claim against Buzzfeed.
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.
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.
New Case Law in Entertainment, Media, and IP Law
SCOTUS declined to hear two Digital Millennium Copyright Act cases:
- Lenz v. Universal Music Corp. After receiving a DMCA takedown request from Universal Music Group, YouTube removed a video of a baby dancing to Prince’s “Let’s Go Crazy” that fell within the fair use defense. The Ninth Circuit held that copyright owners must reach a “good faith belief” that the material is infringing before filing a takedown request. Advocates against DMCA abuse hoped the Supreme Court would raise the easy, subjective standard to a more rigorous “objectively reasonable” belief in order to prevent censorship, but the court passed on reviewing the case.
- EMI Christian Music Grp., Inc. v. MP3tunes, LLC. Record companies and music publishers sued a digital music storage site for copyright infringement. The jury awarded $48 million to the plaintiffs, despite the district court finding that the site had a reasonably implemented repeat infringer policy as required for safe harbor protection under 17 U.S.C. § 512. The district court then partially granted the site’s post-trial motion for judgment as a matter of law, reducing the award to $12 million by reasoning that the site did not have red flag knowledge or willful blindness regarding two categories of pirated songs. Upon review, the Second Circuit reinstated the original verdict holding that a reasonable jury could find that the site did not have a reasonable repeat infringer policy, because the site did not connect takedown notices to users who repeatedly created links to that pirated content or to users who repeatedly copied that pirated content. Some copyright experts argued the Supreme Court should have taken the case, since the ruling directly conflicts with the DMCA’s “no duty to monitor” rule.
SCOTUS rules on the disparagement clause and copyright separability:
- Matal v. Tam. The U.S. Patent and Trademark Office invoked §2(a) of the Lanham Act to deny “The Slants” trademark registration, since the band’s name was deemed to be disparaging to Asians. The disparagement clause prohibited registration of terms that bring persons, institutions, beliefs, or national symbols into contempt or disrepute. The band, which sought to end the disparaging connotation by reclaiming the racial slur and using it in a positive and empowering way, asserted a free speech defense. Justice Alito agreed that the disparagement clause violated the First Amendment, since “speech may not be banned on the ground that it expresses ideas that offend.” The case also ended decades of Native American activism to strip the Washington Redskins of trademark protection.
- Star Athletica LLC v. Varsity Brands Inc. Venturing into fashion law to address the widespread disagreement among the circuits, SCOTUS reviewed the separability of unprotected useful items (such as clothing) from their protected expressive elements. The fashion industry hoped for a broad definition that would protect their products under copyright, while consumer advocates hoped a narrower approach would increase competition. Clarence Thomas wrote the new test: copyright protects expression that can “be perceived as a two- or three-dimensional work of art separate from the useful article” so long as it qualifies as protectable expression when “imagined separately from the useful article into which it is incorporated.” Some experts questioned whether this ruling would have the unintended consequence of expanding copyright protection to basic fashion tropes such as frequently used colors, stripes, and shapes.
Intellectual property and media law decisions from the lower courts:
- Elliott v. Google, Inc. Google filed a cybersquatting complaint under the Uniform Domain Name Dispute Resolution Policy (UDRP) when Elliott registered 763 domain names inclusive of the word “google.” After the arbitrator sided with the tech giant, Elliott filed a claim to have the trademark cancelled, arguing that it had succumbed to genericide. Genericide occurs when a trademarked brand loses protection, because it has become the generic name for the product or services it protects (e.g. aspirin). This often occurs because the trademark owner has failed to police the mark and prevent others from using its mark to identify competitor’s products or services. Although “google” is used as a verb meaning “to search the internet,” the Ninth Circuit held that Google will not lose trademark protection, because the use of “google” as a verb did not necessarily constitute generic use. The brand passed the “who-are-you/what-are-you” test, since the use of “google” as a verb is used to describe searching the internet but not to describe all search engine services as a category of products or services.
- Corbello v. Devito. The District Court for the District of Nevada overturned a jury verdict against the Broadway musical “Jersey Boys” for copyright infringement of an unpublished autobiography, since a fair use analysis of the copying showed that only a quarter of a percent was copied from the source content. Most similarities, the court explained, were due to the fact that both works were based on actual historical events, which are not copyrightable.
- Jordan-Benel v. Universal City Studios, Inc. Douglas Jordan-Benel sued Universal City Studios for allegedly using substantial parts of his screenplay for the basis of “The Purge” film series. The implied-in-fact contract claim was based on Universal City Studios’ failure to pay Jordan-Benel. Universal City Studios filed an anti-SLAPP motion, which was denied by the district court because the contract claim did not arise from conduct in furtherance of the right of free speech. The Ninth Circuit affirmed, and the case is expected to continue at a lower court and potentially go to trial.
- Virginia Citizens Def. League v. Katie Couric. Katie Couric was sued for defamation in relation to a nine second pause after the reporter asked gun rights advocates a question in a documentary. The gun rights advocates claimed the footage was manipulated to falsely inform viewers that the subjects had been stumped by the question and had no basis for their opinions. The district court granted Couric’s motion to dismiss, because the interview scene was not false, since the gun rights advocates did not answer the question and “the editing simply dramatizes the sophistry” of the gun rights advocates.
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.