MEDIA AND ENTERTAINMENT LAW

Transcription

1 YEAR IN REVIEW MEDIA AND ENTERTAINMENT LAW 2014-June 2015 HAYNESBOONE.COM Austin Dallas Denver Fort Worth Houston Mexico City New York Orange County Richardson San Antonio Shanghai Silicon Valley Washington, D.C Haynes and Boone, LLP

2 The Media and Entertainment Practice Group of Haynes and Boone, LLP represents a broad range of clients in all facets of media and entertainment, intellectual property, open government and First Amendment litigation, counseling, and legislative matters. We are proud to provide a summary of our accomplishments and activities in , and to highlight some of the trends impacting the media and entertainment industry. AWARDS Best Lawyers in America 2015 Tom Williams, Commercial Litigation, Litigation - First Amendment, Litigation - Intellectual Property Published by Woodward/White, Inc. Austin Way: Eight Influential Austin Women Catherine Robb April 2015 Leading Lawyer in Latin America in 2015 by the Latin American Corporate Counsel Association Hunt Buckley 2015 Texas Super Lawyer Rising Star Jason Bloom Published by Thomson Reuters RECENT WINS Brandon Darby v. The New York Times Company and James McKinley, Jr. Haynes and Boone represented The New York Times and its reporter in a defamation case filed by former activist turned tea party spokesperson, Brandon Darby. The lawsuit stemmed from an article about the Governor s Mansion fire in which ties to the Austin anarchist community and Darby s involvement as an FBI informant was discussed. The trial court granted summary judgment in favor of The Times and the reporter, the ruling was affirmed by the Amarillo Court of Appeals, and the Texas Supreme Court denied the Petition for Review. Marc Fantich v. Comcorp of Texas Inc. Haynes and Boone represented a television station in a case filed by an advertising agency for defamation, tortious interference, and negligence after the station truthfully told a customer that the station s ad reps could no longer accept ads from the agent, who had multiple unpaid invoices. After filing a motion for summary judgment on all claims, plaintiff dropped his defamation and negligence claims but kept the tortious interference claim and added a claim for public disclosure of private facts. Haynes and Boone filed a Rule 91a Motion to dismiss on the public disclosure claim because the communication at issue was a private conversation, there was no public disclosure and the facts were not private facts. The judge agreed, dismissing the privacy claim with prejudice and awarding fees. The judge later granted the Motion for Summary Judgment on the claim of tortious interference, disposing of all claims. Theaola Robinson v. KTRK Television, Inc. Haynes and Boone represented television station, KTRK, in a libel per se action brought in response to the station s true reports on the closing of a local charter school due to (among other things) a lack of adequate funds and allegations of financial mismanagement and failure to properly account for State funds. Finding that the station had not accused the plaintiff, the former superintendent of the school, of any criminal activity and that the broadcasts were true, the court of appeals reversed the trial court s denial of the station s anti-slapp Motion and dismissed the case against the station. The court also held that one cannot rely upon third-party user generated content to establish a defamation per se claim. Fees were subsequently awarded in the case. Developments in Texas Media Law During 2015 Session Law360 June 17, 2015 Texas Supreme Court Hands Down its First Rulings on the State s Anti-SLAPP Statute Texas Association of Broadcasters May 4, 2015 Texas Legislature on Course to Adopt Third Party Allegation Rule as Law Media Worked to Remedy Result of Neely v. Wilson Decision April 2015 In re Fort Worth Star-Telegram Haynes and Boone represented a daily newspaper and three television stations in a successful mandamus challenging a juvenile court order excluding the press and the public from hearings in a high-profile murder case. In a case of first impression, the court of appeals held that the Texas statute imposes a duty on juvenile court to open hearings to the public, in cases in which the accused juvenile is at least 14 years old, unless evidence in the record establishes good cause to close a proceeding. The court also held that the press and public have standing to challenge a closure order and that conclusion of the juvenile case in which the closed proceedings occurred did not render the media challenge moot. Texas Governor Signs Law Protecting Reporting on Whistleblower Allegations TPA Messenger, FOIFT, TABulletin March 29, 2015 FAA s Proposed Drone Rules Offer Hope, But Some Limits for Journalists February 2015 The Texas Legislative Session: Bills for Journalists to Love and Hate February 2015 FAA Announces Proposed Drone Rules: Will Allow Use of UAS under 55 lbs., under 500 ft.: Certification National Press Photographers Association February 15, 2015 A Busy Year for Anti-SLAPP Litigation and Legislation Law360 December 18, 2014 KTRK Awarded Over $250,000 in Fees and Mandatory Sanctions under Anti-SLAPP Law October 16, 2014 Christopher Williams v. Cordillera Communications, Inc., KVOA Communications, Inc. d/b/a KRIS Communications Haynes and Boone obtained the first ruling in the state in which a federal court declared the Texas anti-slapp statute a substantive right to be applied in federal court. The case, pending in the Southern District of Texas Corpus Christi Division, involved a local television station s investigative series about a high school teacher and coach who had been accused of improper behavior with students and other improper acts for more than a decade and was permitted to move from school district to school district without having his teacher certification revoked. The court granted the station s anti-slapp motion and awarded fees. Ask an Attorney: Recent Decisions Affect Access to Juvenile Courts October 2014 Tom Williams Ask an Attorney: Drone Journalism September 2014 A Victory for State Anti-SLAPP Laws Law 360 July 15, 2014

3 NATIONAL TRENDS IN ANTI-SLAPP LAWS Partner DRONE JOURNALISM TAKES STEPS TOWARD FAA BLESSING Associate Oftentimes, the media is sued out of retaliation for their investigative reports and exposure of wrongdoing, and citizens are sued for speaking out or voicing their opinions about events taking place in their communities. These lawsuits are called SLAPP suits (the acronym for Strategic Lawsuits against Public Participation ), and they are used to censor and intimidate critics through legal action. SLAPP suits stifle public debate, threaten news reporting and diminish civic engagement principles fundamental to our democracy. Over the past year, both courts and legislatures have made significant strides in combatting SLAPP suits through anti-slapp decisions and laws, with thirty U.S. jurisdictions having such statutes. Recently, the judicial and legislative branches in several jurisdictions recognized the need for SLAPP statutes to help put an end to litigants using the legal system to retaliate against one for exercising their First Amendment rights. California has one of the oldest statutes which has stood the test of time and constitutional challenges for the last twenty years.since then, several other states adopted similar statutes, including Texas and Oklahoma, and recently Florida and Nebraska have expanded their previously narrow protections to cover a broader discussion of matters of public concern. In addition, last year, the American Legal Exchange Council, an organization of conservative legislators and corporate representatives, drafted and endorsed model anti-slapp legislation. Tech industry leader, Yelp, Inc. ignited the effort by ALEC to adopt a model bill after seeing the litany of abuses of the legal system that arose from the online publishing community. While states have been active in applying and enacting SLAPP laws, the issue has gained significant attention on a federal level as well. Currently, there is no federal anti-slapp law, so litigants can forum shop in an attempt to file their lawsuit in a state that has no statute or only very narrow protection. Further, federal courts are divided on whether state anti-slapp laws apply in federal cases. The vast majority of jurisdictions have applied their anti- SLAPP statutes in diversity actions, including Arizona, California, Georgia, Illinois, Indiana, Maryland, Nevada, Oregon, Texas, Utah, Vermont, and Washington. A minority of federal jurisdictions in the District of Columbia, Massachusetts and Georgia have ruled that the Erie doctrine bars application of those jurisdictions anti-slapp statutes in federal court. A consistent approach to the application of anti-slapp statutes in federal court is critical to serve the purposes of the statute and to avoid forum shopping. Thus, the U.S. Congress is considering passage of a federal anti-slapp statute, the SPEAK FREE Act of 2015 (H.R. 2304). This bipartisan legislation, introduced by Rep. Blake Farenthold (R- TX) and Rep. Anna Eshoo (D-CA) would strengthen First Amendment protection while bolstering the information economy that thrives on open public discourse and civil participation. The SPEAK FREE Act will allow federal courts to determine whether a lawsuit targeting speech is a SLAPP and dismiss any meritless claims unless the plaintiff can show that the suit would succeed on the merits. MEDIA APPEARANCES Developments in Open Government After the 84th Legislature Capital Tonight, TWC News June 11, 2015 discusses the outcome of the recent Legislative Session and highlights some successes, such as Senate Bill 627 which encourages whistleblowers to come forward and protects the media when they report these allegations of wrongdoing, and Senate Bill 308 which provides private university police department records are subject to the Public Information Act. The past year has been full of important developments in the area of regulation of drones, particularly as the Federal Aviation Administration (FAA) released its Notice of Proposed Rulemaking in February of The prospect of integrating small unmanned aerial systems (suas, commonly called drones) is extremely appealing to journalists due to the improved safety and affordability when compared to other aerial photography options. But the FAA has long considered news photography to be a commercial enterprise for the purposes of its rules on suas and has told journalists that they cannot use suas for newsgathering purposes. The first big news of the year came with the National Transportation and Safety Board s appeal decision in the case of commercial drone photographer Raphael Pirker who had been fined $10,000 by the FAA for operating an aircraft in a reckless manner. An administrative law judge dismissed the fine after determining UAS were not aircraft subject to FAA regulation. The FAA appealed and an appellate judge for the NTSB overturned, and held that UAS were aircraft subject to FAA regulation. In mid-february of 2015 the FAA announced its longawaited proposed rules for the regulation of suas. Initial reactions from journalism advocates were cautiously optimistic. Transparency and Open Government in the Legislative Session Capital Tonight, TWC News March 10, 2015 joins Paul Brown to discuss legislation with transparency and open government. FAA Lifting Red Tape on Drones Fox News March 10, 2015 Under the proposed rules: suas operators must: Pass an initial aeronautical knowledge test at an FAA-approved center Be vetted by the Transportation Security Administration Obtain an suas operator certificate which never expires, unless revoked Pass a recurrent test every 24 months suas flights would be limited to: Daylight hours No more than 500 feet above ground level Situations where there are no people below (other than those people directly involved with the operation) Once certified, the operator would be able to pilot any type of suas for any commercial purpose. The proposed rules also noted that the FAA is considering a micro UAS category for UAS under 4.4 pounds. A micro UAS could be operated over people, and up to 400 feet above ground level. A person would not be required to become certified to operate a micro UAS. It is important to note that the proposed rules are just a proposal, and they may change before they become official rules and more importantly, they are not the current rule, which is still that the FAA prohibits commercial use of drones unless the operator is granted an exemption. However, these proposed rules offer some hope for a clear path to drone journalism blessed by the FAA.

4 NATIONAL TRENDS IN RIGHT OF PUBLICITY CASES The sports world continues to dominate the headlines in right of publicity cases. On the whole, courts have found in favor of athletes. But recent cases have held that the right of publicity does not apply to sports broadcasts. In Marshall v. ESPN, Inc., former college athletes claimed several athletic conferences, networks, and licensing agencies violated their right of publicity by broadcasting college games without the athletes consent. See Marshall v. ESPN Inc., No. 3: , 2015 U.S. Dist. LEXIS 72494, at *6-8 (M.D. Tenn. June 4, 2015). The district court rejected this argument, noting that no other jurisdiction definitively recognizes a right of publicity in sports broadcasts and that Tennessee s statute does not prohibit the use of the students likenesses. Id. at *20-21, * Similarly, in Marshall v. NFL, the Eighth Circuit agreed that the NFL s First Amendment defense the right to broadcast short films of former players was likely meritorious. See Marshall v. NFL, No , No , No , 2015 U.S. App. LEXIS 8373, at *2-3, *27-29 (8th Cir. May 21, 2015). While courts seem apt to deny right of publicity claims in sports broadcasts, courts have been less forgiving to businesses that use an athlete s likeness for economic benefit. Former NBA player Michael Jordan sued grocery store chain Jewel-Osco ( Jewel ) after Jewel placed an advertisement in Sports Illustrated magazine congratulating Jordan for his induction into the Basketball Hall of Fame. See Jordan v. Jewel Food Stores, Inc., 10 C 340, 2015 U.S. Dist. LEXIS 72732, at *5 (N.D. Ill. June 5, 2015). The Seventh Circuit rejected Jewel s First Amendment argument, finding that the advertisement had an economic motive to promote Jewel-Osco s brand and to enhance consumer goodwill. See Jordan v. Jewel Food Stores, Inc., 743 F.3d 509, (7th Cir. Partner 2014). Because the business used Jordan s likeness for economic benefit, the court determined that Jewel- Osco s advertisement constituted commercial speech and Jordan s right of publicity claim could proceed to trial. Id. at 522. Likewise, in Davis v. Elec. Arts, Inc., EA Sports asserted the First Amendment defense that the images it produced of former NFL players in video games were transformative something more than a mere celebrity likeness or imitation. 775 F.3d 1172, 1177 (9th Cir. 2015). The Ninth Circuit disagreed, finding that replicating players physical characteristics and allow[ing] users to manipulate them in the same activity for which they are known for in real life was not transformative. Id. at Because the Ninth Circuit found that this and other affirmative defenses asserted by EA Sports lacked merit, it denied EA Sports motion to strike under California s anti-slapp statute. Notwithstanding sports broadcasts, courts appear less inclined to accept First Amendment defenses in right of publicity cases than ever before a possible indication that right of publicity law will tilt in favor of athletes and other plaintiffs. SPEAKING ENGAGEMENTS Open Government Panel June 19, 2015 San Antonio, Texas Commercial Threats to Freedom of Speech Online 2015 SXSW Interactive Festival March 13-17, 2015 Austin, Texas Hot Issues in Anti-SLAPP Laws ABA Forum on Communications Law Annual Conference February 5-7, 2015 Scottsdale, Arizona Ag-Gag Laws and the First Amendment June 18, 2015 San Antonio, Texas Business of Photography Copyright, Women Photojournalists of Washington March 11, 2015 Washington, D.C. The Nuts and Bolts of a Photographer s Contract Northern Short Course 2015 Fairfax, Virginia Aftermath of Supreme Court s Aereo Decision, Intellectual Property Law Section June 19, 2015 San Antonio, Texas Defamation Law: How to Safely Publish the News National Newspaper Association s 128th Annual Convention and Trade Show October 2-5, 2014 San Antonio, Texas Southwest Broadcast Newsroom Workshop Texas Association of Broadcasters September 20, 2014 Austin, Texas Hot Issues in Ethics ABA Forum on Communications Law Annual Conference February 5-7, 2015 Scottsdale, Arizona Agricultural Gag-Laws Your First Amendment Rights, Your Health, Animal Welfare, and Our Environment Yale Law School September 27, 2014 New Haven, Connecticut DAVID BELL Guarding Your Brand: Trademarks Tips, Insights and Strategies, Bloomberg BNA Webinar June 11, 2015 NEWSLETTERS JUNE 2015 Sine Die 2015 Texas Legislative Session Wrap-Up MAY 2015 Texas Supreme Court Hands Down its First Rulings on the State s Anti-SLAPP Statute APRIL 2015 Aereo s Reach Limited in Fox v. Dish Network FEBRUARY 2015 The Texas Legislative Session: bills for journalists to love and hate DECEMBER 2014 Internet TV in a Post-Aereo World NOVEMBER 2014 Recent Decision Provides Support in War Against Counterfeit Sports And Entertainment Merchandise OCTOBER 2014 No Matter What You Think - The Taking of Photographs is Entitled to First Amendment Protection JULY 2014 Haynes and Boone Secures Historic Anti-SLAPP Law Win in Federal Court Confirming that State Anti-SLAPP Statutes Create Substantive First Amendment Rights JUNE 2014 Supreme Court to Determine Legality of TV Retransmissions Over the Internet

5 CURRENT PRACTICE GROUP MEMBERS DAVID HARPER T Partner Austin T T TOM WILLIAMS Partner Fort Worth T DAVID BELL T DEBORAH COLDWELL T MARK ERICKSON Partner Orange County T DAVID FLEISCHER Partner New York T DANIEL GOLD T DONALD JACKSON Partner Houston T ERNEST MARTIN T JONATHAN PRESSMENT Partner New York T CATHERINE ROBB Counsel Austin T KEN PARKER Partner Orange County T HUNT BUCKLEY Senior Counsel Mexico City T Associate Austin T ANDREW GUTHRIE Associate Dallas T SARAH JACOBSON Associate New York T HAYNESBOONE.COM LISA NORMAND Associate Dallas T