Entertainment Law

• 1. Libel (written defamation)
• 2. Slander (spoken defamation)
• 3. Business/product disparagement

• P must prove D:
• 1. Published or spoke
• 2. A false statements
• 3. That was defamatory
• 4. Concerning the P;
• 5. While acting w/ actual malice or negligence; and
• 6. Damages were incurred

NB: Is false statements an element of defense? (i.e., was the statement actually false?)

NB: Actual malice needed if person was a public figure, negligence only needed if private figure

When one person (other than writer and defamee) sees or hears the material and that person understands the statement to be defamatory

Presumption to Mass Media: Mass media releasing something is publication

Only liable if they knew or should have known of defamation

Truth is an absolute defense to defamation

What's the "gist"? Does the proven truth leave a diff. impression of the P to the jury than the impression created by defamatory statement?

• Protected under the 1st Amendment
• What is opinion? Look at:
• 1. Verifiability;
• 2. Precision of language (phony, cheat, crook is imprecise)
• 3. Context (including cautionary language
• 4. Type of writing or speech

NB: Opinions cannot imply false statemetns of objective fact

Tends to harm the rep. of another so as to lower in the estimation of the community or deter 3d persons from assoc. or dealing w/ him, or it tends to expose him to public hatred, contempt, or ridicule.

• Accusion someone of:
• Crime, loathsome disease, professional misconduct, sexual misconduct, racism, financial ruin

NB: Presumption of damaged rep––P can recover w/o proof of injury

• 1. Reputation not capable of being harmed
• 2. Cannot isolate words or take out of context
• 3. Parody/satire is protected

• Others must reasonably understand that P is the one referred to
• Can be ID'd by:
• 1. Name
• 2. Nickname
• 3. Photo
• 4. References that would only ID one person

NB: Can't shield from defamation by couching something as fiction––fictional chars closely resembling real people may lead to defamation

Usu. <3 or 4 people in a group

NB: A legal entity can sue as a whole

No defamation when someone says something about your friends or family

[Tex.]––"[Not allowed to] blacken the rep. of the dead."

• What is the speaker's attitude to the truth?
• Established by:
• 1. Knowledge of falsity; or (entertained doubts, but published anyway)
• 2. Reckless disregard for truth

Clear and convincing

• What would an ordinary person under similar circumstances do?
• Determine by: Jury or judge finds how a resonable reporter/writer would have acted––If D was below that: Negligent.

• 1. Any elected official; OR
• 2. Other gov't official if:
• - he has a substantial responsibility for or control over gov't conduct;
• - public has an interset in qualifications and performance of person beyond that for all gov't employees; and
• - sotry is about the official's job resp. or performance

• 1. General-purpose
• 2. Limited-purpose

Name is a household word

NB: Judge from community in which story was published (e.g. Ron Roberts in Lubbock vs. Country)

• 1. Controversy at issue is "public" (issue's resolution will have widespread effect)
• 2. P has more than a trivial or tangential role in controversy
• 3. Defamation is germane to P's participation in controversy
• 4. Controversy must exist before publication
• 5. P must voluntarily participate in controversy
• 6. P must by actively seeking to influence and have access to comm. channels to do so

VICE PIG

• Voluntary
• Influence issue
• Communication channels to influence issue
• Existent issue before publication

• Public issue
• Important (not trivial/tangential person)
• Germane to the controversy

Hurt feelings, mental suffering, or anguish (w/in jury's discretion)

NB: If defamation per se, can recover w/o proof of damages

Loss of employment, lost income, loss of earning capacity

NB: Must be supported by ev. to get spec. dmgs

D acted w/ actual malice, fraud, or gross neg.

• Can't defame when:
• - In a legis. or judicial forum
• - Official comms or statements by public officials

Other absolute privileges: Comms between employer/employee, report of credit rating, and personnel recomendations

Generally, completely, fairly, and accurately reporting what happens at a gov't or judicial proceeding is privileged

• Elements:
• 1. Matter of public interest;
• 2. Libeled person is the focus
• Statements are made in good faith

• NB: The publisher is acting as the eyes and ears of non-attendees
• NB: A person incidental to a story of public interest is not barred by qualified priv.

Not required in Tex.

Allows D opportunity to retract story before suit (retraction must be as prominent as alleged defamation)

Strategic Lawsuits Against Public Participation

Some states (not Tex.) have SLAPP statutes––P must show probability of success before a suit can succeed if a matter of public interest

Atty fees awardable

• 1. Intrusion upon seclusion
• 2. Publication of private info
• 3. Placing an individual in a false light
• 4. Appropriation of name or likeness w/o permission

None

Vary from state to state

• Not recognized in Tex.
• Elements:
• 1. The false light in which the indiv. was placed would be offenseive to a resonable person; and
• 2. The publisherwas at fault when the publication was made

NB: Very similar to defamation law

• 1. Publicity was given
• 2. To a matter concerning an indiv.'s private life;
• 3. Not of legit. public concern; and
• 4. The publication would be highly offensive to a reasonable person

NB: Some states don't reconize because it may publish press for publishing truthful info

NB: Focuses on what was published, not how it was obtained

• - Must be a public disclosure of a private fact
• - Different from "publication" in defamation (must be seen by the public at large; not just 1 other person)

Presumption: Usu. presumed in cases of newspapers, mags, TV, and radio

• - Material must actually be private
• - No liability for public domain matters (e.g., anything that happened in public view)

• - Can't be of legit public concern (e.g., murders, arrest, police raids, suicide, marriages, divorces, accidents, rare diseases, incest, rape)
• - Line crossed when publicity is no longer important info giving but is morbidly sensational prying for its own sake

NB: Public importance can trump offensiveness

Would a reasonable person be offended by the publication of the material?

• Not needed in Texas!
• Test:
• 1. Fame of subject;
• 2. Social val. of story
• 3. Depth of intrusion

Sliding scale: soc. val hig = depth of intrusion matters less and vise-versa

There must be a logical nexus between the complaining indiv. and the matter of public interest

Can't intrude on private affairs of others (physically or otherwise) if the intrusion would be offensive to a reasonable person

NB: Doesn't focus on what is published, but how the info was obtained

Can be actual or not (e.g. telephoto lens)

Thing or place must ordinarily be private (a reasonable expectation of privacy)

NB: No protection for public places

Must be highly offensive to a reasonable person

Limited but legit expectation that private convos won't be intruded upon

E.g., Sanders––reporter videotaped "telepsychic"

Can't take someone's ID, name, or likeness for commercial or trade purposes w/o consent

• NB: Encompasses right to priv. and pub.
• NB: Protects a property right! Can be passed to heirs and assignees!

• 1. Knowing use of person'sname
• 2. On products, merch, or goods,
• 3. W/o prior consent

Anything that would suggest to onlookers that P is ID'd

• NB: Only recognizable likeness is needed; no Id-able facial recognition needed
• NB: Celebrity impersonators are on thin ice––some license

D must be seeking pecuniary advantage

• Exceptions:
• - Plays, books, film, radio, or TV programs
• - Mags or news articles
• - Political or newsworthy valuable material
• - Parodies or social commenary
• - Single and original works of art; and(3 stooges––could ahve sold the originals, problems w/ prints, though)
• - Ads or commercial announcements cnocerning any of theseuses

NB: Polydoros––D appropriation for commercial purpose wasn't ever meant for fiction––meant for putting celeb faces on products to sell them

Defense to appropriation, BUT, if consent dated, made w/o capacity, or is substantially from image to which consent was granted, it's not valid defense (BARF case)

"Promote the progres of science and useful arts" through protecting © on a federal level.

Anything fixed in a tangible medium of expression (sufficiently permanent to permit it to be perceived, reproduced, or otherwise communicated for more than a transitory duration)

NB: Must be original

Ideas, themese, bare plotes, non-creative titles, slogan words, methods, systems, formulae, equations, incidents, characters, and scenes a faire and facts and newsevents.

• © goes to employer when:
• 1. Work created by employee w/in scope of employment; or
• 2. Indep. K-er of work that falls into one of 9 cats

• 1. Contribution to a collective work;
• 2. Part of motion picture or AV work;
• 3. Translation;
• 4. Supplementary work;
• 5. Compilation;
• 6. Instructional text;
• 7. Test or answer materials to test; and
• 8. Atlas

• One © belongs to two authors when:
• They intend contributions be merged into inseparable or interdependent parts of a unitary whole

NB: Each author's contribution must be independently ©-able

Parts have little to no meaning by themselves

Parts achieve their primary significance because of combined effect

• For works after 1/1/78:
• - Life + 70
• - Works for hire or no ID-able author: 95 years or 120 years after creation, whichever is first

None. (Though benefits come w/ registering ©)

Purchaser of a lawful copy can listen, watch, sell, lend or lease that copy.

• © symbol
• Write "Copyright"
• Both
• Regster w/ US © Office

Freely assigned and transferred

Transfers of ownership (including assignments, mortgages, or any exclusive right) must be in writing

Not req'd

• Benefits:
• Needed to:
• 1. Sue;
• 2. Get statutory damages;
• 3. Get atty fees

Allowed––can still sue but not get atty fees or stat. dmgs.

Same as pre-release registration. Allows holder all rights (sue, etc.)

• 1. Work is ©-able
• 2. © is still valid
• 3. D had access to work
• 4. Substantial similarity between works

• 1. What is the general idea or theme of each work?
• 2. If the same, how are they expressed?
• Plot, characters, pacing, mood, setting, sequence

PCP makes you a MeSS.

Causing/materially contributing to infringing conduct of another (w/ knowledge)

Knowing of infringement by one you have the right and ability to supervise and you do nothing to stop it (and you financially gain from it)

• 1. Purpose and char. of work
• 2. Nature of ©'d work
• 3. Amt. and substantiality used in relation to work as a whole
• 4. Effect of the use on the market for or val. of ©'d work (most important)

• More likely fair use when:
• 1. Noncommercial;
• 2. Criticism and comment, teaching and scholarship, or research;
• 3. News/public interest; and/or
• 4. Transformative

• More likely fair use when copied work is:
• 1. Informational (rather than creative)
• 2. Published (rather than unpublished)
• 3. Not commercially available

Amount used is not as important as the proportion, relatively, used

• Most important factor
• If challenged use become widespread, it would adversely affect market for the ©'d work

• © Act preemepts all equiv. equitable rights to any exclusive © rights
• Impact: Can't bring state law claims equiv. to what's protected by © law––either subject matter or exclusive rights wise

• 1. Is the subject matter of the state law claim goverend by © law?
• 2. Does similar state law claim have extra elements to differentiate it?

• 1. Injunction
• 2. Actual damages
• 3. Stat. dmgs. (750-30K/work infringed)
• 4. Atty fees (if timely registered)

• Can't do it, BUT
• One can protect novel ideas through K––express or implied––or other state causes of axn