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Exam 4 Law

Arianna Suero English 79 cards

Cards in this deck (79)

  1. 11. Appropriation is meant to protect ___ and is meant for 2. Right of publicity is meant to protect _____ and is meant for1. Leave Me Alone" interest and your emotional tranquility/ meant for public officials
    2. "Don't leave me alone, but do pay me" interest./ Property right, Celebrities
  2. 24 elements of appropriation & right of publicity1. Unauthorized
    2. Use of
    3. Another's name/ likeness
    4. or benefit/ advantage
  3. 34 defenses for appropriation & right of publicity1. consent
    2. connected to a newsworthy event/story
    3. incidental use/ booth rule
    4. Deceased (unless survival statute - post mortem right of publicity)
  4. 4Define "booth rule"if you have already run a newspaper article about a celebrity. If it has already been used in news, you can use it advertising the upcoming news story
  5. 5list (expansion) of right of publicityLook-alike
    Sound-alike
    Catch phrases
    Robots/objects
    Videogame avatars
  6. 6Daune Reade caseCelebrity Katie H sued. They are using her image and name without her permission. Her picture leaving the drug store is posted on their twitter account.
  7. 7Michael Jordan case-Sued supermarket chains because of the unauthorized use of his likeness in 2009.
    - Jordan argued that two chains used his name in violation of the Illinois Right of Publicity Act, the Lanham Act, the Illinois Consumer Fraud and Deceptive Trade Practices Act and the common law tort of unfair competition.
    - Jordan wins 8.9 million
  8. 8Anchor Harris Faulkner casesettles lawsuit over Hasbro toy.
  9. 9"Its Johnny" 2 cases.- John carson sued for toilet ad- won
    - The movie "the shining" had a "its johny" reference, carson cannot sue because the phrase is used in an artistic, not advertising way
  10. 10Vana White &Wheel of Fortune case what happens-Samsung published an ad, with a robot that looked just like Vana
    -Vana sues for right of publicity.
    -A federal court ruled that this photo was a use of White's image, and constituted an actionable appropriation.
    - Vana wins
  11. 11Woody Allen case-american apparel used a pic of Allen (for a billboard) acting in a movie
    -allen sues for appropriation
    -Allen wins $M
    - allen is dressed as a character from a movie, yet he still prevails
  12. 12George Wendt and John Ratzenberger (Cheers) what kind of case what happens? what is court of appeal ruling?-(likeliness case) Wendt and Ratzenberger sued a restaurant chain for installing animatronic robots that looked like characters played by them on the TV series "Cheers." .The 9th U.S. Court of Appeals ruled in their favor. The court said a performer does not lose the right to control the commercial exploitation of his or her likeness merely by portraying a fictional character in a motion picture or television series.
  13. 13three stooges what happens what does the california supreme court ask-literal depiction .Comedy three production owns their publicity (they are dead). Gary seider (artist) does charcoal drawings of the three of them.
  14. 14three stooges pt 2 what does s.c. rule?If the work in question is significantly transformative of another work (like a photograph) the first amendment will protect it. Are you buying the shirt because of the artistic value of the painting or because of the three stooges image? Court rules in favor of comedy three production.
  15. 15Hocus pocus-singer sues for sound alike
  16. 16DC comics Jonah Hex comic series / The winter brothers. What happens Who wins?figures known as the "atumn brothers" in the comic books. This is not a literal depiction. They have been significantly transformed. No one would buy this as a substitute for a Winter brothers poster.
    The Winter brothers Sue for right of publicity Court rules for dc comics
  17. 17Tiger Woods what does he sue for? what does court rule? (Opposite to what case)-woods sues for trademark and right of publicity. court rules that Rush's work contains significant transformative elements worthy of 1st amend. Protection, rush's work does not capitalize solely on a literal depiction of woods -(opposite of the 3 stooges case)
  18. 18Reckless disregard for the truth 1. Did the defendant - - 2. 3. 4.-Entertain serious doubts about the truth
    -Purposefully Avoid the truth?
    2. Hot news
    3. Source credibility
    4. Probability of story
  19. 19Public Official = elected & non-elected officials Questions to ask: 1. government employee 2 media access 3. responsibility/ control 4. Position invites scrutiny1. must be in order to be a public official
    2. does the person enjoy significantly greater access to mass media than most govt employees?
    3. does person have OR appear to have substantial responsibility for or control over conduct of govt. officials?
  20. 206 Elements of defamation action1. Publication
    2. Identification
    3. Defamatory meaning
    4. Falsity (of fact)
    5. Fault
    6. Damages/injury
  21. 21Defamation includes (2)libel and slander
  22. 22Define libelprinted or written form. Any fixed representation (also a picture)
  23. 23Slander:spoken or verbal form
  24. 24Most states say TV and radio are part of _____libel
  25. 25Lessons from Milkovich: T/F labeling a statement does not make it an opinion. -what are protected as opinions?TRUE. "rhetorical hyperbole" AND loose, figurative "imaginative expression"
  26. 26T/F Statements reasonably interpreted as implying facts that are capable of being proved/verified as true or dales are NOT protected opinionTRUE. not protected.
  27. 277 Defamation Defenses1. Truth
    2. Opinion
    3. Consent
    4. Wire service defense
    5. Libel proof plaintiff - when rep. is too bad, that anything you say you cannot hurt them
    6. Incremental harm- (most of it is truth but one false statement (incremental/minimal) non-actionable
    7. Statute of limitations
  28. 28-Define a fair report privilege -3 parts to fair report privilegeA qualified (conditional) privilege to report false and defamatory info.
    1. Source of Information
    2. Attribution to Source
    3. 3. Fair & Accurate Summary
  29. 29fair report privilege. 1. source of informationa. The allegedly defamatory statements must be taken from or occur during an official government proceeding or document
    i.Statements made by judge or a witness in court during a trial
    ii. Statements made by a city council member during a council meeting
    iii. Facts recorded in a final police report or in an affidavit
    iv. Statements made by a police officer in an arrest report
  30. 30fair report privilege. 2. Attribution to SourceThe article must attribute the information to the official proceeding or document
  31. 31fair report privilege. 3. Fair & Accurate Summarya. The article fairly and accurately summarizes and reports the information from the official proceeding or document
  32. 32FOUR AREAS OF PRIVACY LAW1. Appropriation of one's name or likeness for trade purposes
    2. Intrusion upon an individual's solitude or seclusion
    3. Public disclosure of private facts about an individual
    4. Publishing material that puts an individual in a false light
  33. 33Define appropriationtaking a person's name, picture, photograph or likeness and using it for
    commercial gain without permission.
  34. 34Define the right to publicityis an attempt to remunerate individuals for the economic harm suffered when their name or picture is used for advertising or trade purposes, and they are not compensated for it.
  35. 35The various aspects of a person's identity that are subject to illegal uses (3)Name, likeliness, voice
  36. 36The various aspects of a person's identity that are subject to illegal uses NAME-stage names, pen names,pseudonyms and so forth count the same as real names in the eyes of the law.
    -The names of businesses, corporations, schools and other "things" are not protected under the law.
    -trade names like Crest can be protected
  37. 37The various aspects of a person's identity that are subject to illegal uses Likeliness-taking someone's photo for an ad without their consent
    -there must be a "clear representation" of "identifying features" such that the individuals would be "recognizable from the advertisement Itself."
    -A likeness can also be a sketch or a drawing.
    -some courts have agreed that likeliness can extend to characters played in movies or TV
  38. 38The various aspects of a person's identity that are subject to illegal uses VOICE-using someone's voice in an ad for commercial profit
  39. 39TRANSFORMATIVE USE TEST emerged from 3 Stooges case - If the reproduction is simply a literal translation of the celebrity's image, then _____.its not protected by 1st amendment.
  40. 40TRANSFORMATIVE USE TEST But if the user has added other elements to the image, has significantly transformed the image into a parody, used the name in a song, lampooned the prominent person, or in some way used the celebrity's likeness as a vehicle for the expression of opinion or ideas, then ___the rights of free expression take precedence over the right of the celebrity to protect his or her right to publicity.
  41. 41Lindsay Lohan v Pitbull -what happens -what does she sue for -ruling?In song, pitbull says "So, I'm tiptoein' to keep flowin'/ I got it locked up like Lindsay Lohan."
    She sues for appropriation, She loses because "the use of an individual's name-even without his consent-is not prohibited if that use is part of a work of art."
    Art is protected by 1st amendment
  42. 42Lindsay Lohan v Rockstar Games -what kind of case is this? what happened?(likeliness case). Grand Theft Auto uses character that resembles Lohan. The court ruled that even if the in-game character constituted a representation of Lohan, the video game did not fall under the statutory definitions of "advertising" or "trade."
  43. 43George Wendt and John Ratzenberger -what kind of case(likeliness case).
  44. 44Kim Kardashian v Old Navy -what kind of case is this? -what happens(right to publicity case). Old Navy runs SUPER C-U-T-E commercial with Kim Kardashian lookalike. Sued for millions, claimed it violated her right to publicity falsely represents that Kim Kardashian sponsors, endorses, or is associated with
  45. 45Bette Midler v Ford Motor Company what kind of case is this? what happens? what does court rule?(voice case).Ford hires a singer that sounds like Midler to sing her hit song for a commercial . A federal appeals court ruled, "The singer manifests herself in the song. To impersonate her voice is to pirate her identity." Not all voices are protected, only distinctive voice of a widely known professional
  46. 46Comedy III Productions v Gary Saderup (3 Stooges case) - what happens -what does court rule -what did this create?Artist Saderup makes charcoal drawing of The Three Stooges and prints them on t-shirts for sale. Court ruled Saderup used a literal depiction of the Stooges for commercial gain without adding significant expression beyond his trespass on the right to publicity
  47. 47NFL v Electronic Arts Video Games what happens? -what did EA argue? -what did court rule?Madden game uses historic games feature with former NFL athletes. Madden did not obtain a license to use the likenesses of the former players on these. Did not use players name or pic, but included position, years in the NFL, height, weight, skin tone and relative skill level. EA argued transformative use, courts did not accept
  48. 48Sarver v Hurt Locker what happens?Hurt Locker is a movie about US/Iraq war. Movie depicts a character similar to Jeffrey Sarver, an Iraqi war vet. Sarver sues for misappropriation/right of publicity, alleging his identity and likeness were used without his consent
  49. 49Sarver v Hurt Locker what did the 9th circuit court of appeals say Server cant sue? (3 reasons)1. The Hurt Locker was not for commercial use
    2. The movie did not steal Sarver's "entire act" or otherwise exploit the economic value of any performance or persona he had worked to develop.
    3. The Hurt Locker was simply inspired by Sarvers story
  50. 50Sarver v Hurt Locker -what does the court conclude?"'The Hurt Locker' is speech that is fully protected by the First Amendment, which safeguards the storytellers and artists who take the raw materials of life-including the stories of real individuals, ordinary or extraordinary-and transform them into art, be it articles, books, movies, or plays."
  51. 51Hart v Electronic Arts /Keller v Electronic Arts - what happens -what does E.A argue -what does court rule?EA makes football video game with characters that closely resemble real-life players
    -EA argues 1st amendment protection for artistic expression
    -court ruled re-created celebrities in a different medium is NOT transformative use.
  52. 52Bullard v MRA Holding, LLC -what happens -what did court rule?14 yr old Bullard flashes her breasts to two men during spring break, men were taping her. Video sold to MRA holdings. MRA produced video 'Girls Gone Wild' and Bullard's photo is used for cover. Photo used in ads.
  53. 53Bullard v MRA Holding, LLC -what did court rule?Court ruled "The men to whom Bullard exposed her breasts never indicated to Bullard that they worked for, had any connection with, or had any intention of giving Bullard's image to, MRA for the purpose of selling 'College Girls Gone Wild' videos. Nor did Bullard have any contact with MRA to give MRA permission to use her image for that purpose," minors typically cannot consent to the use of their names or likenesses without additional permission from a parent or guardian.
  54. 54CAN BE REGARDED AS COMMERCIAL USE (first 2 out of 5 )1. Use of a person's name or photo in an ads on tv, radio, newspapers, magazines, Internet, posters, billboards
    2. Display of a person's photograph in the window of a photographer's shop to show potential customers the quality of
    work done by the studio.
  55. 55CAN BE REGARDED AS COMMERCIAL USE (last 3 out of 5)3. A false testimonial suggesting a person eats the cereal/ drives the car in question.
    4. Use of an individual's name or likeness in some commercial message on the Web
    5. The use of someone's likeness or identity in a commercial entertainment vehicle like a feature film, a television situation comedy or a novel.
  56. 564 defenses for appropriation & right of publicity 1. news and public interest exception- news is not considered a trade purpose, even if sold for profit, doesn't deny them protection of liberty of expression
    -people who are named/pics in news stories cannot sue for appropriation.
    -If you are depicted in a movie without permission, it is protected if courts deem your role public interest.
  57. 574 defenses for appropriation & right of publicity THE DOCTRINE ON INCIDENTAL USE-permits a brief use of an person's name/ likeness in some commercial creations.
    -to address concerns that penalizing every unauthorized use, no matter how insignificant or fleeting, of a person's name or likeness would impose undue burdens on expressive activity.
  58. 584 defenses for appropriation & right of publicity Consent - what does law prohibit -defendent must what? -who cant give consent- the unauthorized use of a name or likeness for commercial/ trade purposes.
    - prove that he or she had consent to use the name or photograph
    -Under 18, Mentally ill, Incarcerated prisoners sometimes
  59. 594 defenses for appropriation & right of publicity Post-mortem-State-to-state basis
    -Heirs gain right for 70 years after death in Cali
    -^ 20 years in Virginia
    -In tennessee, as long as heir's keep exploiting the deceased likeliness, they can profit forever
  60. 603 Sources of defamation law1. Common law (basic 6 elements)
    2. Statutory law
    3. First amendment overlay: when the false elements applies, there are certain exceptions for members of the media.
  61. 61what is SLAPP? How many states have anti SLAPP statutes?-strategic lawsuit against public participation (suing for defamation, suing someone based on opinion, and wrongful interference of contractional relationships).
    - They are not based on false facts. SLAPP suits tend to be meritless.
    -about 30 states
  62. 62-Purpose of SLAPP suit -How a SLAPP usually works-to silence criticism of the plaintiff's activities, Someone is speaking out in a public forum, criticizing someone's activities.
    -Sometimes the plaintiff doesn't have money for a lawyer, the company/person says, we will throw away the lawsuit if you stop speaking out.
  63. 63Anti SLAPP statutes: Florida (3)1. Strategic Lawsuits Against Public participation (SLAPP) prohibited
    2. Free speech in connection with public issues
    3. A person or governmental entity may not file…
    You can quickly make a motion to dismiss.
  64. 64what does " Anti-SLAPP (Citizen Participation Acts) dopermit the defendant to ask a judge to dismiss the complaint immediately.
  65. 65Define libelThe publication or broadcast of any false statement of fact that injures someone's reputation.
  66. 66TO WIN A LIBEL SUIT A PLAINTIFF MUST PROVE:1. The libel was published.
    2. Words were of and concerning the plaintiff.
    3. Material is defamatory.
    4. Material is false.
    5. Defendant was at fault.
  67. 67Define: 1. slander 2. damage claims 3. survival statute.1. spoken false factual assertions
    2. Large sums of $$$
    3. relatives can continue libel suit if person dies before the matter is settled
  68. 68Nicole Eramo v Rolling Stone case - what happens - who winsEramo is a dean at Univ of Virginia
    In a story, Rolling Stone portrayed Eramo as the "chief villain" in not supporting or helping a woman named "Jackie," who claimed she was gang raped at a Univ of Virginia fraternity.
    Jury awards Eramo $3 mill
  69. 69Kato Kaelin v Examiner case -what happens -who wins and whySued the Examiner for headline "KATO KAELIN . . .COPS THINK HE DID IT", Implying he may have murdered OJ's wife, when they were accusing him of perjury.
    -Kato wins because an average, reasonable reader might conclude that "it" means murder
  70. 70New York Post "Bag Men" @ Boston Marathon terrorist attack -what happens -who winsNYP puts two juveniles on cover called BAG MEN and writes "Feds seek this duo pictured at Boston Marathon". Barhoum and Zaimi were NOT suspects, but the newspaper implied they were
    o NYP settles. Barhoum and Zaimi win.
  71. 71Leah Manzari (Danni Ashe) case -what happens? -what kind of case is this -who wins?Daily Mail publishes article ""Porn industry shuts down with immediate effect after 'female performer' tests positive for HIV."
    Uses photo of Manzari, even though she wasn't the referenced performer with AIDS.
    Daily Mail loses: careless use of pictures. Defamatory.
  72. 72Stacey Stanton v Boston Magazine -what happened? -trial case rules? then goes to? and rules?BostonMag writes article about teenagers sexual activity. Uses photo of Stanton w. disclaimer saying they were unrelated to the teenagers in the article. Trial case rules against Stanton, saying that the disclaimer negated confusion. BUT, US 1st Court of Appeals reverses ruling: disclaimer was so small, it might be overlooked by readers
  73. 73Define libel tourismtraveling to a foreign venue to file a defamation action that would not succeed in this country.
  74. 74SPEECH Act was (at the federal level) was created to address libel tourism in 2010. -What does SPEECH stand for? -what does this mean? - what is the exception?Can sue abroad in another country and win, but cannot collect the damages from us courts when they get back.
    Exception: Unless those countries' libel laws and constitutions provide at least as much protection OR defendant would have lost in the US.
  75. 75what is Online AnonymityAn unenumerated (implied) first amendment right of anonymous speech is recognized by SCOTUS.
  76. 76Dendrite Test: to subpoena identity of anon poster, one must: (1&2 out of 4)i. The plaintiff must first make an effort to notify the anonymous poster that he or she is the subject of an application for disclosure.
    ii. The plaintiff must identify and set forth the allegedly defamatory Statements.
  77. 77Dendrite Test: to subpoena identity of anon poster, one must: (3&4 out of 4)iii. The plaintiff must provide sufficient evidence to support each element of the cause of action, including the harm that has allegedly been incurred.
    iv. The court must balance the defendant's right to anonymous speech against the strength of the plaintiff's case and the necessity of disclosure to allow the plaintiff to proceed properly.
  78. 78MeToo libel suits:Woman comes forward against someone, guy says it’s not true, woman sues for being called a liar.
  79. 79what is the bottom line today regarding online anonymity and unmasking?1. the right to online anonymity is not absolute and courts have the power to force Web site operators and interactive computer services to reveal the IP & email of anonymous posters;
    2) most courts apply some version or variation of either the Dendrite/ Cahill test to determine if such "unmasking" of anonymous posters is justified in a given case.

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Flashcards on Exam 4 Law, created by Arianna Suero on 02/12/2018.
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