Home » Blog » first amendment

Tag: first amendment

New Lawsuits in Traditional and Social Media Law #5

  • 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 expects to graduate in May 2018.


 

New Cases from the Internet invoking IP and Media Law #3

  • Another Rich Man Sues a Website after Bad Press. In a case that is reminiscent of billionaire Peter Thiel financing Hulk Hogan’s suit against Gawker after the site outed Theil as gay, game developer Jonathan Monsarrat is suing Encyclopedia Dramatica for publishing a wiki-page which cited to stories accusing the millionaire of creating a dating service to collect information on women and allegedly distributing alcohol to teenagers. (This is not the first time Monsarrat has sued a site that published unflattering stories about him. He previously sued a LiveJournal blogger that posted a story about his arrest in 2010. Monsarrat later dropped that case after it became clear that it was brought in bad faith.) The newest suit claims Encyclopedia Dramatica infringed on Monsarrat’s copyright in quotes from forum posts and a photo of Monsarrat in a beaver costume. Encyclopedia Dramatica believes this suit was also brought in bad faith. Follow this case for potential anti-SLAPP litigation, for insight on the recent trend of websites being sued by the rich for publishing unbecoming stories and on the recent trend of websites crowdfunding legal defenses.
  • Spotify Sued after Struggling to Obtain All Necessary Music Licenses. Amongst rumors that the company plans to launch on the NYSE, Spotify was recently hit with two copyright infringement lawsuits (here and here). Spotify has deals to license the sound recordings and other licenses to publicly perform the songs, but songwriters and music publishers are suing for unauthorized use of the song compositions. The streaming service sends out notice of intention letters as required to attain Section 115 compulsory licenses from the songwriters and publishers, but argues that finding each of the co-authors of their entire catalog is too hard a task. Spotify has settled similar cases in the past for tens of millions of dollars. Keep up with these cases to remain fully aware of the development of mechanical licenses in the age of the internet and for insight on class action lawsuits that involve IP infringement.
  • Requesting Access to Social Media Accounts in the Hiring Process. A new lawsuit alleges NBC demanded prospective employees share their personal social media accounts before being offered an interview. Half the states ban prospective employers and universities from requesting access to a prospective employee’s personal social media accounts. Although requesting social media access is not prohibited during the hiring process in New York, providing access to personal social media accounts could potentially reveal protected Equal Employment Opportunity information such as age, religion, and medical information.
  • Sci-Hub Sued Again for Providing Free Access to Scholarly Works. Hoping to mimic a $15 million award for a similar plaintiff in the Southern District of New York, the American Chemical Society is suing Sci-Hub under copyright and trademark law for spoofing the ACS’s website and provided access to over 62 million academic publications (which are published by a collection of sites including ACS, Elsevier, Springer, and more.) Some academics believe the publishing sites are unlikely to receive any of the awarded damages, since Sci-Hub is run out of Russia under a variety of domain names and IP addresses. Other academics, however, intend to use these case as inspiration in their protests against the publishing sites for affordable access to academic publications. Follow this string of cases for insight on collecting damages from defendants overseas and for trends in the licensing of scholarly works.
  • Jenner Shirts Inspire Social Media Outrage, Lawsuits, and Satirical Copycats. Kendall and Kylie Jenner received a cease and desist letter for use of The Doors’ likenesses, after the reality star sisters released a line of $125 t-shirts with the images of the band and other musical icons including Tupac Shakur, Metallica, Pink Floyd, Ozzy Osbourne, and Biggie Smalls. The family of the Notorious B.I.G. took to Instagram to declare that the shirts had no affiliation with or approval from the rapper’s estate, while Sharon Osbourne sent out a tweet critical of the girls’ decision to include her husband in their fashion line. After only two shirts were sold, the line was pulled, and Kendall Jenner tweeted an apology. The photographer behind the Tupac Shakur images is now suing the sisters for copyright infringement, but the Jenner sisters claim to have a valid license for the images. (Shortly thereafter, the rock band Arcade Fire satirized the shirts by making their own versions to mock the Jenner sisters, followed by an apology tweet that mimicked Kendall’s own tweet.) Separately, Kylie Jenner is being sued for copying an artists’ painting of biting lips for an advertisement promoting her upcoming show, Life of Kylie. Keep up with these case for more tweets from celebrities attempting to sound like lawyers.
  • @realDonaldTrump Faces a #realLawSuit after Blocking Twitter Users. The Knight First Amendment Institute at Columbia University is representing a flock of Twitter users who have been blocked by the President’s account. The suit claims @realDonaldTrump is a constitutionally protected public forum and that blocking users unconstitutionally prohibits access to government statements and unconstitutionally prevents petitions for redress of grievances. In a similar case, the United States District Court for the Eastern District of Virginia ruled that a Facebook user’s constitutional rights were violated when a county official blocked his account. Separately, a photographer is suing the Trump Organization for copyright infringement after the company posted the photographer’s copyrighted work on its site and the @realDonaldTrump Instagram account. Follow these cases for insight on how Trump critics are using the First Amendment and IP law as a check and balance against the President.

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 enrolled in the University of Florida Levin College of Law with hopes of pursuing an in-house legal career at an entertainment or media corporation. He has held legal internship positions at PBS with America’s Public Television Stations in Arlington, VA and at AMC Networks in New York, NY. He expects to graduate in May 2018.


 

Decisions in Entertainment, Media, and IP Law #1

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 enrolled in the University of Florida Levin College of Law with hopes of pursuing an in-house legal career at an entertainment or media corporation. He has held legal internship positions at PBS with America’s Public Television Stations in Arlington, VA and at AMC Networks in New York, NY. He expects to graduate in May 2018.