Mass media Law 3

(INTELLECTUAL PROPERTY MC 3080: Mass Media Law INTELLECTUAL PROPERTY ➤Legal category – intangible property ➤Copyright ➤Trademark ➤Also patent law, but beyond this class PURPOSE OF COPYRIGHT ➤Art. 1, Sec. 8, Clause 8 ➤“To promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” ➤Encourages/rewards creativity of authors and artists (for their time and creations) COPYRIGHT ➤Protects intellectual creations from unauthorized use ➤Federal – no state copyright law anymoreCOPYRIGHT HOLDERS ➤Copyright holders have: ➤Right to copy and distribute those copies ➤Authorize adaptations ➤Perform and display a work publicly COPYRIGHT ➤Why should you care? ➤Your employer will care ➤It’s a federal offense ➤You could get fined (or possibly jail) ➤YOU have rights! COPYRIGHT REGISTRATION ➤Copyright ownership = self-executing ➤Once you start creating, it’s yours ➤Don’t have to register unless filing a lawsuit OVERALL COPYRIGHT RULE ➤If you didn’t create the work and/or own the copyright to it, you MUST get permission to use it ➤Just giving credit is not enough (!!!!) GROUPS OF 3 OR 4 ➤Try This: ➤Do a Google Image Search for a celebrity ➤Imagine you’re creating something for fellow fans! ➤Now click on Tools —> Usage Rights ➤Toggle to Creative Commons licenses ➤Email me a pic that is free vs. one you would have to pay to use REQUIREMENTS FOR COPYRIGHT ➤Expression ➤Can’t just be in your head ➤Originality ➤Small spark of creativity ➤Tangible Medium ➤Capable of being reproducedIS IT COPYRIGHTABLE? ➤Work of authorship created? ➤Predominantly expressive work? ➤Literary, musical, graphic, audio-visual ➤Does it contain more than raw facts or ideas? ➤More extensive than title or short phrase WHICH OF THESE CAN BE COPYRIGHTED? ➤One-sentence idea for streaming show spin-off ➤A video of you reciting a poem you thought up on the spot ➤Your grandma’s chocolate chip cookie recipe that she almost never shares ➤The slogan “Just Do It” WHICH OF THESE CAN BE COPYRIGHTED? ➤One-sentence idea for streaming show spin-off ➤A video of you reciting a poem you thought up on the spot ➤Your grandma’s chocolate chip cookie recipe that she almost never shares ➤The slogan “Just Do It” CANNOT BE COPYRIGHTED: ➤Ideas, Facts, Procedures, Ingredients ➤Short phrases/slogans/Titles (trademark law) CAN BE COPYRIGHTED: ➤Photos, Stories, Illustrations, Advertisements, Video/Audio, Compositions, Works of Art AS A GENERAL RULE… ➤If there is only one way to state something, it is not copyrightable ➤Names, titles, and other short phrases do not qualify for copyright protection ➤Otherwise couldn’t post about movies, albumsMORE ON ORIGINALITY… ➤Compilations are protected ➤Arrangements of facts is copyrightable, but not the facts themselves ➤Must consider the selection, editing, required effort, creativity for arrangement ➤Alphabetical? IS IT COPYRIGHTABLE? ➤Work must be original, not reproduction of existing material ➤NO requirement that the work be unique ➤However it must be performed independently ➤Two photographers at Tiger Stadium COPYRIGHT DURATION ➤Public Domain - all the creative work to which no exclusive intellectual property rights apply ➤Constitution’s copyright clause specified “limited times” COPYRIGHT DURATION ➤Supreme Court found (7-2 decision) that 70 years is still technically limited ➤Takes away public’s right to works? COPYRIGHT DURATION ➤“70 years after the death of author. If a work of corporate authorship, 95 years from publication or 120 years from creation, whichever Sixth Amendment nSpeedy public trial nRight to impartial jury is paramount •U.S. jury system has origins in 12thCentury England •Shortly after “trial by ordeal” was ended in Europe •Original juries were “self informing” 2 Estes v. Texas (1965) nImpartial jury is the cornerstone of jury system nEstes v. Texas (1965) •Court rules broadcast coverage automatically altered juror perceptions •No right to record in courtroom 3 Sheppard v. Maxwell (1966) nCorrects Estescase ruling nPress coverage may coexist but significant coverage creates a prejudicial trial 4 Remedies to Prejudicial Publicity nTo prevent juror bias: nContinuance –delay until publicity subsides nChange of venue –move locations •Change of VENIRE nJury voirdire –extra questioning 5 Remedies to Prejudicial Publicity nTo prevent juror bias: nSequestration –isolate jury from the public nAdmonition –instructions to jury to ignore nOrder new trial –in case jury contaminated 64/14/26 Prejudicial Publicity nTo overturn a criminal conviction: n Actual and identifiable juror bias resulting from prejudicial publicity OR n Such persuasive publicity that bias can be presumed Riverside Press Enterprise Test n Determine if hearing presumed open n This type of hearing traditionally been open? n Will opening this hearing play a positive role in the functioning of judicial process? n Not presumed open if BOTH answers “no” 7 8 Journalist’s Privilege nThere is no clear “privileged relationship” for journalists •Attorney-client, doctor-patient, spouse, etc. nJournalists argue reporter-source should be a privileged relationship as well •For integrity of newsgathering process 2 Subpoena nSubpoena nOrders a person who may have evidence relevant to legal proceeding to either testify or produce specified evidence 3 Contempt of Court nCivil Contempt nCompels individual to do what’s required to benefit the complainant nCriminal Contempt nPreserves court’s authority, punish disobedience 4 Branzburgv. Hayes (1972) nFour cases consolidated, court heard them together nTwo involved reporters and illegal drugs nTwo involved covering Black Panther Party nReporters refused to show for subpoenas 5 Branzburgv. Hayes (1972) nRuled against journalists (5-4) nNo privilege for journalists according to Court nJuries are “entitled to every man’s evidence,” nConcurring opinion, “limited nature” of ruling •Should evaluate case by case 64/14/26 2 Shield Laws nNo federal shield law nProtects journalists from subpoenas, being forced to reveal sources •49 states + D.C. have some type of privilege •40 states specifically have shield laws •Varying degrees of protection 7 Journalist’s Privilege Test nPrivilege does not exist if gov’t: nProbable cause to believe reporter has info connected to specific violation of law nNo alternatives nRelevance –compelling, overriding interest 8 In Defense of Journalism nSources rely on confidentiality nJournalists would argue potential chilling effect nTake this very seriously • Josh Wolf 9 What is a journalist? nIn Louisiana n“Any newspaper or other periodical issued at regular intervals and having paid circulation” nPress associations, wire service, radio, TV, and people/corporations who make news reels or other motion picture news for public showing 10 Breaking Confidentiality Promises nCohen v. Cowles Media Co. (1992) nCohen gives info on condition of anonymity nCourt ruled First Amendment does not protect journalists when they breach confidentiality •MN reporters not happy about revealing confidential sources 11 Privacy Protection Act (1980) nPlaces restrictions on use of search warrants for news organizations nResult of Zurcherv. Stanford Daily (1978) •Ruled that search of newspaper for protester pics was legal (5-3) nHearings began immediately—PPA passed •Few exceptions (imminent harm, national security, child pornography, etc.) 124/14/26 Protect Your Privacy nIf presented with a search warrant: n Contact a lawyer n Record the events n Exercise your legal rights • You are required to allow the search, not aid it Latest on biometrics nPasscodes are protected nCannot force you to reveal passcode • Exists in your mind, similar to 5th nBiometrics are unsettled n Ninth Circuit (2024): Merely a physical act n D.C. Circuit (2025): Self-incrimination (5th) n Supreme Court will almost certainly weigh in “Can I see your phone?” nNO! n “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’” 13 14 15 Information Gathering nAbility to obtain information nNewsgathering privilege not fully guaranteed by the First Amendment nCourt doctrine –journalists generally have same degree of access as any other citizen •No more, no less 2 Recording in Public Space nCan generally gather news if it can beenseen by “passers-by” nOfficials can limit access to public property for disaster, interest of public safety 3 Recording Police nYesyou can record police nGlikv. Cunniffe(2011) •Court of Appeals –First Circuit reaffirmed in 2017 nRight to film police in public space •Subject to “reasonable limitations” of time/place •Arrests still occur –chilling effect 4 Newsgathering Pitfalls nHarassment nTortious newsgathering –Use of reporting techniques that are wrong & unlawful nAnti-paparazzi legislation 5 Food Lion v. Capital Cities/ABC (1999) nSent producers undercover nFalsifiedjobapplications,used hidden cameras •Alleged:unsanitary food handling practices nFoodLiondidnotsueovercontent nNever claimed footage was false nSued over the methods •Fourth Circuit reduced damages to $2 64/2/26 Food Lion v. Capital Cities/ABC (1999) nTwo separate questions: 1) Did ABC break law to get story? § Yes (fraud, breach of loyalty) § Newsworthiness is irrelevant 2) Did Food Lion prove what it cost them? § No (claimed losses were tied to content) § $2 was all they could prove Noncovert Recording nBanning recorders does not infringe on First Amendment n Banning/limiting cameras in courtrooms n Can limit recording by preventing access to events, even if they take place in public • Constraints at emergency/disaster sites Denying Access to Records nStudent Records n Family Education Rights & Privacy Act (FERPA) n Prohibits release of student school records unless parents give consent • Health Insurance Portability & Accountability Act (HIPAA) protects patient’s medical privacy 7 8 Open Government Laws nOpen Government Laws n Cannot control government without knowing how it works 9 Freedom of Information Act nFreedom of Information Act (1966) n Allows access: gov’t agency records & meetings n Agency: Established by executive branch • NASA, FCC, FTC, etc. n Record: Document created & owned by agency 10 11 12 24/2/26 Freedom of Information Act nFOIA Exceptions n National security, n Trade secrets n Personal privacy n Law enforcement n Financial records • Others are rare FOIA FYI n Supreme Court is not FOIA-friendly n Does not view public records as a fundamental right n If you are not a resident, states can ignore your FOIA request • Upheld twice (unanimous decision) Louisiana Public Records nStandard Exemptions n Individual privacy, public safety “Ultimately, the Legislature did pass limits on government information that can be released that relates to economic development. Landry also signed a law that requires that anyone seeking records from the governor's office must be a Louisiana resident.” 13 16 14 Louisiana Public Records nDocument “Custodian” n Person who oversees the documents n Must go through the proper custodian • Can’t just email Coach Kelly n People can be jerks