Arts and Entertainment Law FTT 40491/50591

Arts and Entertainment Law FTT 40491/50591 Study Guide Never forget the sins of writing: Mortal Sins It s vs. its (contraction vs. possessive) It s me (it is me) vs. Paper has its uses They re vs. Their vs. There They re equals they are as in They re late. Their is possessive as in Their books There is a location as in It s over there Your vs. You re Your is possessive as in It s your book You re equals you are as in You re late Commas matter! Let s eat Grandma! vs. Let s eat, Grandma! Than vs. Then Than is comparative as in This is better than that Then is temporal as in We ll eat then go to the movie Alot is not a word. Ever. Using quotation marks for emphasis Using apostrophes to pluralize words Yes, we have no banana s is wrong wrong wrong wrong. Anyways is not a word. Ever. It s anyway

Usually issued when statute says something like agency shall develop Lose vs. Loose Beware of loose pants because you might lose them. Could of, would of, should of are not substitutes for Could have, would have, and should have. It doesn t matter that it sounds like could of. Venial Sins Alright is casual, all right is better/more proper United States Legal System Fifty-one distinct legal systems Federal System 50 State systems There are even more if you include US territories like Guam, US Virgin Islands, or Puerto Rico. Each legal system has four sources of law Constitution Legislation Bills passed by the legislative branch, acted upon (sign or veto) by president/governor Enacted bills are referred to as statutes Case law Example: Copyright Act of 1976, 17 U.S.C. 101 et seq. Case decisions made by judicial branch usually are precedent for future cases with similar facts Court may need to interpret terms in statutes or constitutions Court may need to resolve disputes where no statute exists that applies to the dispute Administrative regulations Issued by the executive branch

Administrative regulations Issued by the executive branch Usually issued when statute says something like agency shall develop and issue regulations that Example: Federal regulations dictate how many brake lights must be on your vehicle and where they must be on the vehicle Structure of Judicial Branch is important to understand Lowest level: trial courts Various names Federal system: United States District Court State systems: Circuit Court, Superior Court, County Court, Municipal Court, etc. Oddball: New York trial courts are called Supreme Courts Job of trial court is two-fold Determine the facts (if the facts are disputed, then a trial is necessary) Apply the law to the facts as determined (after trial if there is a trial) One judge makes all rulings Party losing in trial court can appeal Mid-level: appellate courts Typically called Court of Appeals Oddball: New York calls this court Supreme Court, Appellate Division Job is to determine whether trial court committed any legal errors (misapplied the law in some fashion) Court of appeals is not place for a new trial; it s not a do-over Three judges review the trial court decision Court of appeals affirms or reverses trial court decision In reversal, case is sent back to trial court for further proceedings consistent with the appellate court s ruling

Court of appeals affirms or reverses trial court decision In reversal, case is sent back to trial court for further proceedings consistent with the appellate court s ruling Could be a new trial, re-sentencing of criminal defendant, or dismissal if trial court should have dismissed a case Party losing in court of appeals can appeal Top level: Supreme Courts Usually called a supreme court, as in Supreme Court of the United States (SCOTUS), Indiana Supreme Court, etc. Again, New York has different name, calling their highest court simply the New York Court of Appeals Most high courts have discretion to hear appeals Take only important cases that will have effect on many parties or resolve large legal questions Supreme Court of the U.S. hears only about 1% of the cases presented to it Some appeals must be heard by high court, such as capital punishment sentences in Indiana Depending on the court, anywhere between 5 to 9 judges (referred to at this level as justices ) review the lower court decision. (Indiana has 5 justice, SCOTUS has 9 justices) Difference between mandatory authority and persuasive authority Mandatory authority is case law from court above e.g. Indiana trial courts must follow decisions of Indiana s appellate courts; Indiana Court of Appeals must follow decisions of Indiana Supreme Court e.g. U.S. District Court for Southern District of New York must follow decisions of U.S. Court of Appeals for the 2nd Circuit since NY is within the 2nd Circuit; must also follow U.S. Supreme Court decisions Persuasive authority is case law from other courts Used only when there is no mandatory authority e.g. Indiana Court of Appeals might look to decisions of other appellate

Persuasive authority is case law from other courts Used only when there is no mandatory authority e.g. Indiana Court of Appeals might look to decisions of other appellate courts in other states e.g. U.S. District Court for Southern District of New York may look to 9th Circuit rulings if 2nd Circuit hasn t ruled on the issue The Law of Ideas The Law (with a capital-l) protects certain kinds of intellectual property Patents protect inventions, pharmaceuticals, or business methods Trade secret law protects proprietary information, such as the formal to Coca-Cola, from disclosure or theft Trademarks protect logos and the reputation of a business Copyrights protect creative works like novels, plays, music, movies, etc. Trade secret law, trademarks, and copyright do not protect ideas! Patent law is closest to protecting ideas (such as an idea for a new invention) but it has to be more than a basic idea (e.g. I think I ll invent a new mousetrap ) To receive a patent, the inventor must submit plans, designs, engineering drawings, etc. to show how the invention actually works Copyright law protects the expression of an idea Example: A story about a shark terrorizing a New England beach community vs. the novel Jaws by Peter Benchley (and the later screenplay/ film Jaws directed by Spielberg) A story about a shark is merely an idea The novel and screenplay/film is an expression of that idea Certain elements are going to be included out of necessity and therefore cannot be basis for claim that idea was stolen Example: In a story about a shark there will likely be scenes on a beach or on a boat can t really do a shark story without an ocean, beach, boat, etc. Example: In a story about Germany in World War II, there will have to be Nazis, book burnings, concentration camps, etc.

beach or on a boat can t really do a shark story without an ocean, beach, boat, etc. Example: In a story about Germany in World War II, there will have to be Nazis, book burnings, concentration camps, etc. Generally speaking, the only way to protect an idea from theft in the entertainment industry is by use of a contract Example: I will share my story idea with you on the condition that you pay me if you use it, and that you don t share it with anyone else if you don t use it. A written contract is always better than a verbal contract Verbal contracts are often enforceable (valid), but it s harder to prove what the terms of the contract are if it s only verbal; with a written contract the terms are right there on paper. Copyright Copyright protects original works fixed in a tangible medium No protection for ideas (e.g. A story about a shark ) Originality Means not copied from some other source Work Does not mean novel or unique A creation of the author s own brain Not an issue of artistic merit Minimal creativity is all that is required Painting a copy of the Mona Lisa is not original for copyright purposes Painting a copy of the Mona Lisa with a new color scheme is original for copyright purposes The thing created: painting, sculpture, architectural design, computer program, screenplay, music, etc. Fixed in a tangible medium Paint on canvas, words on paper or in the word processor, musical notes on a page, photograph, video on a storage device, etc.

Fixed in a tangible medium Paint on canvas, words on paper or in the word processor, musical notes on a page, photograph, video on a storage device, etc. Author The person who created the work (not limited to writers) May be joint authorship more than one person working together to create the work with the intent that it be jointly owned (e.g. a band where each member contributes something to the song) Joint authors each have the right to exploit (use for commercial or noncommercial purposes) the work but must share income received with the other joint authors Authorship involves making creative choices Protection attaches when the work is created when it is fixed in the tangible medium of expression Registration is not a requirement for protection Registration is a requirement before you can file suit for infringement Delayed registration (before suit but after infringement occurs) can limit recovery of attorney s fees if suit is successful Facts are not protected by copyright Competing stories on the cause of the Hindenburg s explosion would each qualify for copyright protection, even though based on the same set of historical facts Characters are protected by copyright Mickey Mouse, Indiana Jones, Darth Vader, etc. US government works are not protected by copyright Specifically stated the Copyright Code Copyright owners enjoy certain exclusive rights Duplicate the work Perform the work Display the work publicly Make modifications/derivative works (e.g. sequels)

Perform the work Display the work publicly Make modifications/derivative works (e.g. sequels) Distribute copies of the work Transmit audio digitally via networks These rights are a bundle they can be separated Example: copyright owner can let one person perform the work but give a different person the right to make a derivative work while holding onto the rest of the rights Giving the right(s) known as a license can be exclusive to one person or not, perpetual or not, etc. Notice requirements Copyright law offers protection even if there is no notice, an incomplete notice, or incorrectly formatted notice Proper format: [year of publication] [name of author] Can use Copyright or Copyr. in place of Infringement Copying probably the most frequent type of infringement in the digital age Computers are very, very good at copying data and rewriting it Elements of an infringement case alleging copying Infringes exclusive right of copyright owner to duplicate the work Plaintiff (π) must prove: 1. Defendant ( ) copied the work 2. did not have permission Proving copying Can be proven through direct evidence (e.g. an admission) Can also be proven through indirect evidence π must prove had access to the copyrighted work before copying

Can also be proven through indirect evidence π must prove had access to the copyrighted work before copying The more access shown, the more likely it is the copied π must prove substantial similarity The more similar the works, the more likely the copied π must also prove substantial appropriation (substantial taking): the took enough of the work so that it s a copy, not something new Damages for infringement Minor differences made to distinguish are not sufficient to avoid a conclusion of substantial appropriation Is sampling a substantial appropriation? Three seconds is OK is a myth One case says three notes can be too much Plaintiff can recover actual damages These are the plaintiff s lost profits + the defendant s profits resulting from the infringement Plaintiff can alternatively request statutory damages These are damages specifically provided for in the statute, a legislative determination of what the damages should be for infringement In a statutory damages case, the court can conclude that the infringement was willful or innocent (unintentional) If the court finds neither willful or innocent, the damages range from $750 to $30,000 per infringing act (in other words, from $750 to $30,000 per copy) If the court finds willful infringement, damages can go up to $150,000 per infringement (per copy) If the court finds innocent infringement, damages can go down to $200 per infringement (per copy) Plaintiff can also recover attorney s fees and court costs

If the court finds willful infringement, damages can go up to $150,000 per infringement (per copy) Fair Use If the court finds innocent infringement, damages can go down to $200 per infringement (per copy) Plaintiff can also recover attorney s fees and court costs These can be very expensive, tens of thousands or even hundreds of thousands of dollars Plaintiff can also request the court to order the defendant to surrender all infringing copies so they can be destroyed Jammie Thomas case Defendant downloaded 24 songs illegally, court entered verdict of statutory damages totaling $220,000 (about $9,000 per song) Plaintiff argued such damages were necessary to deter others from doing the same thing Joel Tenenbaum case Defendant was a college student Copied and distributed 30 songs Total verdict of $675,000 ($22,500 per song) Fair use is an affirmative defense to claim of infringement Applies only when you ve been sued by a plaintiff Although, plaintiffs ought to consider whether fair use defense would be successful before plaintiffs file suit or threaten to file suit Defendant admits copying and infringement, but argue it is permitted under fair use doctrine Defendant still has to spend money (attorney s fees) to prove fair use Defendant has no guarantee of success There are no bright line tests to decide what is fair use and what isn t Fair use involves analysis of four factors 1. Purpose and character of the infringing use

Fair use involves analysis of four factors 1. Purpose and character of the infringing use Example: educational/non-profit more likely to be considered fair use than a commercial use 2. Nature of the copyrighted work More likely to be fair use if the infringing work is for scientific, biographical, or academic purposes (example: quoting something in a scholarly article for purposes of critiquing the work) 3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole The bigger percentage of the work copied, the less likely it is fair use 4. The effect on the market for the copyrighted work as a result of the use The DMCA Will sales of the work be likely to go down as a result? If so, not likely to find fair use. Will sales of the work be unaffected as a result? Then likely to find fair use. Digital Millennium Copyright Act Intended to bring copyright law into the 21st century Addresses problem of web sites using infringing materials Scenario: Facebook allows people to sign up and post stuff they like so friends can see it If a user posts a photograph without permission, should Facebook be liable? DMCA tries to balance competing interests by setting up a procedure to deal with this situation Copyright owner finds unauthorized use, sends a notice to the operator of the web site where the unauthorized use occurs (e.g. Facebook)

DMCA tries to balance competing interests by setting up a procedure to deal with this situation Defamation Copyright owner finds unauthorized use, sends a notice to the operator of the web site where the unauthorized use occurs (e.g. Facebook) Web site operator takes the infringing item down Original uploader/poster can serve a response disputing the takedown notice, and the item goes back up on the web site Copyright owner can then decide whether to sue or not Copyright owner is not supposed to send takedown notice if the offending use could reasonably be a fair use Many owners send takedown notices regardless Defamation is a civil wrong (as opposed to a criminal wrong) Civil wrongs are known as torts Defamation is a statement that harms someone s reputation A plaintiff who wants to prove a case for defamation must show A defamatory statement made by the defendant about the plaintiff Published (communicated) to a third person by the defendant The statement was false The statement caused harm to the plaintiff A defamatory statement is one that tends to harm the reputation of another such that it lowers the person in the esteem of the community or deters third persons from associating with or dealing with the person. Some statements are defamatory per se (the law assumes the plaintiff has been harmed) Guilt of crime involving moral turpitude Lack of chastity (probably not used much today) Having a loathsome disease (leprosy, sexually transmitted disease) In some states, statements adverse to one s profession or business ( he s incompetent or he s a crook )

Having a loathsome disease (leprosy, sexually transmitted disease) In some states, statements adverse to one s profession or business ( he s incompetent or he s a crook ) The defamatory statement must be about the plaintiff, either explicitly, impliedly, or accidentally. There is a tension between First Amendment s free speech principles and the desire of someone defamed to right the wrong These competing interests are balanced in First Amendment case law Case law divides plaintiffs into public and private figures Public figures First Amendment provides greater protection to the defendant accused of defaming the public figure Not limited to celebrities or public officials A public figure plaintiff must prove the defendant acted with actual malice He knows the defamatory statement is false or acts with reckless disregard to the truth or falseness of the statement Private figures First Amendment provides less protection to defendant accused of defamation Private figure plaintiff need prove only that the defendant s statement was false, regardless of defendant s knowledge or intent to defame Facts v. Opinion Opinions can be defamatory Example: In my opinion, he is a crook. Example: In all my years reviewing restaurants professionally, I have never had such horrible food as I did at Wilson s Rib Shack. Defamatory statements must be believable in context (recall Falwell v. Hustler Magazine) If statements are not believable, then they cannot cause plaintiff harm

Defamatory statements must be believable in context (recall Falwell v. Hustler Magazine) Distinctive uniforms or paint schemes (as on a race car) If statements are not believable, then they cannot cause plaintiff harm Rights of Publicity Publicity rights grow out of a general right to privacy the right to be left alone by everyone Privacy encompasses torts such as defamation (right to have your reputation left alone), invasion of privacy (disclosure of private information) Publicity rights originated with case law starting in the State of Georgia where a photo of a man was used in an advertisement without his permission Georgia court held that the plaintiff had a right to sue for use of his persona without his permission A handful of states, including Indiana, have enacted statutes to formally establish the rights to publicity Generally speaking, the right means a person cannot use the persona of another for commercial purposes without his or her permission First question: What constitutes the persona? Some jurisdictions limit application to people whose personalities have commercial value (e.g., an athlete s persona is likely to be valuable to people, but your professor s persona isn t) From statutes and case law: Name Likeness Photograph Signature Voice Distinctive gestures or mannerisms Image Distinctive appearance Case law has expanded this list in some jurisdictions

Distinctive appearance Case law has expanded this list in some jurisdictions Distinctive uniforms or paint schemes (as on a race car) Singing style (sound-alikes) Work environments (Vanna White on Wheel of Fortune set) tag lines/catch phrases ( Heeeeeeere s Johnny! ) Second question: What constitutes commercial purposes? Usually, if it involves money or an effort to make money, it s a commercial purpose Exceptions But commercial purposes can go beyond that: student films, for example this is why the FTT faculty tells you to get releases from people appearing in your productions The law recognizes a number of exceptions to the thou shalt not use another s persona for commercial purposes without his/her permission News reporting Works of fine art (a painting of John Wayne, for example) Characters in plays/scripts Literary works Advertisements for the above First Amendment First Amendment to the U.S. Constitution says, Congress shall make no law abridging the freedom of speech, or of the press Although First Amendment by its own text limits its application to the Congress, the courts have developed case law over the years that applies First Amendment guarantees to other parts of federal and state governments To be a violation of the First Amendment, there must be some kind of action by a government actor to stop the speech. A private employer can legally restrict your speech (it may violate the spirit of the First Amendment, but it doesn t violate the First Amendment itself)

To be a violation of the First Amendment, there must be some kind of action by a government actor to stop the speech. A private employer can legally restrict your speech (it may violate the spirit of the First Amendment, but it doesn t violate the First Amendment itself) no law does not mean NO law, despite what the First Amendment says Supreme Court has recognized a number of limitations on freedom of expression ( freedom of expression is used to refer to both free speech and free press matters Some limitations are actual limitations, others are straight this is not protected at all by the First Amendment situations Courts have a balancing test used in freedom of expression cases If the restriction is content-based, then government must demonstrate a compelling interest in the restriction Content-based restrictions are presumed to be unconstitutional If the restriction is content-neutral, then the government must have a rational basis for the restriction AND the restriction must be narrowly drawn The first question: is there speech? Is the person communicating some kind of idea? Not limited to spoken words alone Picket signs Bumper stickers Actions (e.g. flag-burning) The test is whether a reasonable person would understand that the speaker is trying to communicate some message The law doesn t require that the speaker s message be easily understood or obvious Content-based restrictions Content-based restrictions are subject to strict scrutiny by the courts (the highest level of examination) Permitted restrictions:

Content-based restrictions are subject to strict scrutiny by the courts (the highest level of examination) Permitted restrictions: Speech that creates a clear and present danger (e.g. yelling Fire! in a crowded theatre) Speech that incites people to commit violent acts (e.g. encouraging people to take up arms and attack a government building at that moment or near that moment) Prohibition on fighting words (speech directed to a specific person that is likely to provoke a violent response from the calmest, most rational person) This is an extremely narrow category of speech Obscene material Not to be confused with pornography or even hard core (explicit) pornography (which is often protected by the First Amendment) Miller v. California test Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest Whether the work depicts or describes in a patently offensive manner specific sexual or excretory acts defined in the statute/ ordinance/other Whether the work, taken as a whole, lacks serious literary, political, artistic, or scientific value (using a national standard, not local community standards) If a work (film, photograph, novel, non-fiction book, etc.) fails all three of these standards, then it is obscene and not protected by the First Amendment If one of the standards is not failed, the work is not obscene Child pornography is always obscene under the law, even if it would pass the Miller test Indecency in public media (TV, radio) Offensive words (profanity, even extreme profanity) are protected by the First Amendment

Indecency in public media (TV, radio) Offensive words (profanity, even extreme profanity) are protected by the First Amendment But, with broadcast media being easily accessible to children, courts allow restriction of profane material during hours when children are likely to be awake Commercial speech Still protected by First Amendment, but a bit more limitation allowed (e.g. government can prohibit false or misleading advertisements) Content-neutral restrictions Rights of free expression do not mean you can stand on the street corner below an apartment building with a megaphone at 2:00 a.m. Government can limit speech in terms of time, place, and manner if: Regulation is content-neutral It serves a significant (not compelling) governmental interest The regulation leaves open ample channels for communicating the information/message