MLR Topics, Fall 2009

Send an e-mail to me no later than 3 p.m Monday, Sept. 21., with your top three choices for reports. No guarantees. If you don't have a preference, no problem. I'll put you on a team. Teams will be named Tuesday, Sept. 22,
A DO-NOT-MISS DAY in this class.

Report No. 1 – Fair Use: Satire v. Parody – Team of SIX

Problem:

            The television show "Family Guy" did not infringe copyright when it transformed the song "When You Wish Upon a Star" for comical use in an episode, a U.S. judge ruled recently.

            Music Publisher Bourne Co., the U.S. copyright owner of the song made famous in Walt Disneys "Pinocchio," sued Fox Broadcasting Co., creator Seth MacFarlane and producers in October 2007 for copyright infringement.

            The lawsuit said the song "I Need a Jew," featured in one of the animated shows episodes, was a thinly veiled copy of the music from "When You Wish Upon a Star" coupled with "new anti-Semitic lyrics" and had done damage to the original.

            HYPOTHETICAL: Bourne is considering an appeal of the decision to the U.S. Supreme Court and has asked your team to research the question of satire vs. parody, which was at issue in the case.

Cases:

1.   Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001)

2.   Leibovitz v. Paramount Pictures Corporation, 137 F.3d 109, 114 (2d Cir. 1998)

3.   Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569(1994)

4.   MCA, Inc. v. Wilson, 425 F.Supp. 443, 453 (D.C.N.Y. 1976)

5.   Blanch v. Koons, 467 F.3d 244, 247 (2d Cir. 2006)

6.   Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986)

Report No. 2 – Defamation by Implication

Problem:

            Filmmaker Michael Moore won his court battle with the brother of Terry Nichols, Oklahoma City bombing conspirator.

            The 6th U.S. Circuit Court of Appeals in Ohio sided with a Michigan-based federal judge who in 2005 threw out James Nichols suit accusing Moore of libeling and defaming him in the Oscar-winning movie, "Bowling for Columbine."

            James Nichols contended statements in the 2002 film could lead viewers to believe he was involved in the bombing. His attorney argued that the case was "defamation by implication."

            HYPOTHETICAL: Nichols is considering an appeal to the U.S. Supreme Court. He has asked your team to research the cases involving " defamation by implication. "

Cases:

Stevens v. Iowa Newspapers, Inc, 728 N.W.2d 823 (2007)

Nichols v. Moore, 477 F.3d 396 (6th Cir. 2007)

Toney v. WCCO, 85 F.3d 383 (8th Cir. 1996)

Diesen v. Hessburg, 455 N.W.2d 446 (Minn. 1990)

Memphis Publishing Co. v. Nichols, 569 S.W.2d 412 (Tenn. 1978)

Report No. 3 Gambling and Advertising

Problem:

Lucky Arkansans will start hauling in the dough later this month (September) as Arkansas lottery tickets go on sale. The new law may create some legal problems when it comes to advertising.

HYPOTHETICAL: Your team has been hired by the Ad Federation to research the issues surrounding casino advertising.

Cases:

1.Greater New Orleans Broadcasting Association, Inc., v. United States, 119 S. Ct. 1923 (1999)

2. Valley Broadcasting Co. v. United States, 107 F.3d 1328, cert. denied, 522 U.S. 1115 (1998)

3. United States v. Edge Broadcasting Co. 113 S.Ct. 2696 (1993)

4. Posadas de Puerto Rico Associates v. Tourism Co., 478 U.S. 328 (1986)

5. Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980)

Report No. 4 – Anonymous Speech on the Internet: Team of SIX

Problem:
            The District of Columbia’s highest court recently announced a demanding new standard that plaintiffs must meet before they can obtain the names of anonymous Internet commentators.

             Solers, Inc. v. Doe stems from a complaint submitted on the Software & Information Industry Associations Web site. An anonymous tipster used the SIIA’s online form to accuse Solers of using pirated software. The SIIA investigated and cleared Solers, but it declined to disclose the identity of the tipster due to a “long standing policy of keeping the identity of [its] sources anonymous.” Solers filed claims for defamation and "tortious interference with prospective advantageous business opportunities” against the unknown tipster – named as a “John Doe” in the suit – and issued a subpoena to the SIIA demanding the name.

The District of Columbia Court of Appeals noted that states vary widely in what test a defamation plaintiff must meet before it can compel a third party to turn over the identity of an anonymous speaker.

            HYPOTHETICAL: Solers is considering an appeal to the U.S. Supreme Court and wants your team to research the issues of anonymous speech on the Internet.

Cases:

1. Solers v. Doe, 2009 D.C. App. LEXIS 342 (D.C. Cir. 2009)

2. Doe v. Cahill, 884 A.2d 451 (Del. 2005)

3. Dendrite International v. Doe, 775 A.2d 756 (N.J. App. Div. 2001)

4. Mobilisa v. Doe, 170 P.3d 712 (Ariz. Ct. App. 2007)

5. . In re Subpoena Duces Tecum to America Online, 2000 WL 1210372 (Vir. Cir. Ct. Jan. 31, 2000)

6. Public Relations Society of America v. Road Runner High Speed Online, 799 N.Y.S. 2d 847 (N.Y. Sup. Ct. 2005)

Report No. 5 – “Family Guy” and the Right to Publicity

Problem:

            The legal battle between Carol Burnett and the producers of “Family Guy” over a controversial episode that parodied her is over. A federal judge decided to dismiss the lawsuit.

            Burnett’s rage started when Family Guy aired an episode entitled “Peterotica” on April 23, 2006, which featured a parody of Burnett’s Charwoman character.

            Burnett sued for misappropriation of name among other claims. She was seeking more than $2 million.

            HYPOTHETICAL: Burnett is considering refiling the case in state court and has asked your team to research the issues of the right to publicity branch of appropriation.

Cases:

1. Burck v. Mars, Inc., 571 F. Supp. 2d 446 (S.D.N.Y. 2008)

2. Hoffman v. Capital Cities/ ABC, Inc., 255 F.3d 1180 (9th Cir. 2001)

3. Gary Saderup v. Comedy III Productions Inc., 25 Cal. 4th 387 (Cal. 2001)

4. ETW Corp. v. Jireh Publishing, Inc., 99 F. Supp. 2d 829 (N.D. Ohio 2000)

5. Cardtoons v. Major League Baseball Players Assn., 95 F.3d 959 (10th Cir. 1996)

Report No. 6 – Deceptive Advertising

Problem:

            Bayer Group entered into a settlement with 27 states to resolve allegations it deceptively marketed its oral contraceptive Yaz, according to a press release from Massachusetts Attorney General Martha Coakley.

            In 2007, Bayer reached an agreement to resolve allegations of deceptive advertising of products, including non-disclosure of safety risks associated with its marketing of Baycol. The 2008 settlement resolves allegations that Bayer violated the terms of the 2007 agreement by not disclosing the FDA approved uses of Yaz.

            The settlement requires Bayer to:

    * Disclose the FDA approved uses of Yaz in print advertisements

    * Conduct a $20 million corrective advertising program to remedy misinformation from the misleading YAZ advertisements

    * Submit television advertisements for Yaz to the FDA for pre-approval

Cases:

1. FTC v. Colgate-Palmolive Co., 380 U.S. 374 (1965)

2. Firestone Tire & Rubber Co. v. FTC, 481 F.2d 246 (6th Cir. 1973), cert. denied, 414 U.S. 1112 (1973).

3. Kraft v. FTC, 970 F.2d 311 (7th Cir. 1992)

4. FTC v. Mary Carter Paint, 382 U.S. 46 (1965)

5. Warner-Lambert v. FTC, 562 F.2d 749 (D.C. Cir. 1977)

Report No. 7 – File Sharing and “Making Available”

Problem:

            In 2006, Virgin Records America, Inc., Capitol Records, Inc., Sony BMG Music Entertainment, Arista Records LLC, Interscope Records, Warner Bros Records Inc. and UMG Recordings, Inc. filed a copyright infringement lawsuit in a Minnesota district court against Jammie Thomas for “making available” 26 songs through a file-sharing program.

            Under the Copyright Act, a plaintiff can maintain a copyright infringement cause of action upon proof of ownership in the sound recording and unauthorized copying or distributing by the defendant of the plaintiff’s work. In this case, the record labels maintained that the “making available” (i.e., the offering to distribute that work) falls within the exclusive right of distribution under the Copyright Act.

            This is the first case in which a jury rendered a verdict based on the “making available” argument.

            Initially, the jury found in favor of recording companies, but the verdict is now under reconsideration under a motion for a new trial and motion to amend/correct judgment. Whether this case is retried to a jury verdict or the current verdict is affirmed, the outcome could set the legal precedent on the viability of the “making available” argument for copyright infringement.

            HYPOTHETICAL: A local file sharer has asked your team to research the issues surrounding the legality or illegality of file sharing.

Cases:

1. Capitol Records Inc., v. Thomas, 579 F. Supp. 2d 1210 (D.Minn. 2008)

2. Metro-Goldwyn-Mayer Studios v. Grokster, 125 S. Ct. 2764 (2005)

3. A & M Records, Inc. V. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001) Napster I

4. A&M Records v. Napster, 284 F.3d 1091 (9th Cir. 2002) Napster II

5. Religious Tech. Ctr. v. Netcom On-Line Communication Servs., 907 F. Supp. 1361 (N.D. Cal. 1995)

Report No. 8 – Regulating Indecency on Broadcast

Problem:

The Supreme Court ruled last term that the Federal Communications Commission may penalize even the occasional use of certain expletives on the airwaves but left for another day the question of whether such a policy is constitutional.

The courts narrow ruling said the FCC -- prompted by Chers use of the F-word during a 2002 live broadcast and similar remarks by what Justice Antonin Scalia called "foul-mouthed glitteratae from Hollywood" -- was justified in changing its policy in 2004 to fine broadcasters up to $325,000 every time certain words are allowed on the air.

Fox Television Stations and other networks had challenged FCCs actions under the Administrative Procedure Act. They said the agency did not adequately explain why it changed its policy, which previously held that one-time utterances of expletives did not constitute a violation of FCC rules.

The networks also challenged the rule under the First Amendment, but, like the U.S. Court of Appeals for the Second Circuit in New York, the Supreme Court did not rule on the question of constitutionality.

Fox said it was disappointed but "optimistic that we will ultimately prevail when the First Amendment issues are fully aired before the courts."

HYPOTHETICAL: Because the high court did not answer the First Amendment question, many believe the case will be back before the Supreme Court soon. Your team has been asked by the National Association of Broadcasters to research the issues concerning regulating indecency on broadcast.

Cases:

1. Fox Television Stations, Inc. v. FCC, 489 F.3d 444 (2nd. Cir. 2007)

2. FCC v. Pacifica Foundation, 438 U.S. 726 (1978)

3. Miller v. California, 413 U.S. 15, 20 (1973)

4. Action for Children’s Television v. FCC, 932 F.2d 1504 (D.C. Cir. 1991), cert. denied, 503 U.S. 914 (1992).

5. Denver Area Educational Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727 (1996)

Report No. 9 -- Intrusion & Undercover Investigative Newsgathering

Problem:
            Last year, NBC settled a $105 million lawsuit brought by the sister of a man profiled in a Dateline NBC: To Catch a Predator report.

            The woman claimed her brothers incriminating appearance drove him to kill himself. On the program, host Chris Hansen confronted Louis William Conradt, Jr., a Dallas prosecutor, accusing him of engaging in a sexually oriented online chat with an adult who posed as a 13-year-old boy. The lawsuit claimed NBC "steamrolled" police to arrest Conradt.

            Terms of the settlement were not announced.

HYPOTHETICAL: A local TV station is considering doing a similar investigation and has asked your team to research the issues of intrusion and undercover investigative newsgathering.

Cases:

1. Jensen v. Sawyers, 2005 UT 81 (2005)

2. Medical Laboratories Management Consultants v. ABC, 306 F.3d 806 (9th Cir. 2002)

3. Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999)

4. Desnick v. ABC, 44 F.3d 1345 (7th Cir. 1995)

5. Dietemann v. Time, Inc., 449 F.2d 245 (1971)

Report 10 -- Copyright: Performance and Display Rights

Problem:

            HYPOTHETICAL: Trout Fishing in America is a popular local band, successful in northwest Arkansas and across the nation. Their repertoire includes songs for children as well as for adults.

            Kandys Kids Corner has just opened a store in Evelyn Hills Shopping Center. Kandy Kennedy is the owner and she loves Trout Fishings music, so much that she wants to play it in her store.

            One of her employees, though, is a journalism major who thinks she remembers hearing something about problems with commercial establishments using music without paying royalties.

            Kandy has asked your team to research the law concerning performance and display rights.

Cases:

1.     Playboy Enterprises v. Frena, 839 F.Supp. 1552 (M.D. Fla. 1993)

2. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975)

3. Broadcast Music, Inc., v. Claire’s Boutiques, 949 F.2d 1482 (7th Cir. 1991), cert. denied, 504 U.S. 911 (1992)

4.Broadcast Music, Inc. v. United States Shoe Corp, 678 F.2d 816 (9th Cir. 1982)

5. National Football League v. McBee and Bruno’s, 792 F.2d 726 (8th Cir. 1986)