Posts In "First Amendment"

First Amendment




A “Dirty” Lawsuit: How a Sex Scandal Could Impact Online Defamation Law

A former high school teacher and NFL cheerleader sleeps with her student.  She faces widespread scorn, including scathing Internet comments.  Despite the scorn, she becomes engaged to the student.

It sounds like the plot of a made-for-TV movie.  But these facts form the basis of a landmark defamation lawsuit that could have ramifications for any website that allows users to post comments.

  Continue reading the full story . . . »

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“River Crabbing” Chinese Search Engine Battles for Freedom of Expression in the U.S.

Since then, this goal has often been cited by the Chinese government as a reason for Internet censorship.  In Mandarin, the word “Harmonious” is pronounced héxié (the accent marks here indicate rising tones).  However, by changing the tones slightly to héxiè (a rising tone followed by a falling tone) the word changes from harmonious to “river crab” – which has become Internet slang for government censor.  So when something suddenly disappears from the Internet in China, people often joke that it has been “river-crabbed.”

Although river-crabbing does not happen here in the United States, last week a federal judge had to address a related problem:  Does the First Amendment allow Baidu.com (China’s version of Google) to censor political speech from its search results for users here in the United States? Continue reading the full story . . . »


Fun with Facebook

Recent Cases Involving Facebook 

 

I recently attended a presentation by retired judge Jacqueline Connor on the effect of social media in the legal system.  After listening to her talk about a number of highly amusing cases, I went online to see just how many such cases are now out there.  I was shocked to find that in the month of February 2014 alone, there were over 100 legal opinions issued in the U.S. just involving Facebook.  While some of these cases were more disturbing than amusing, there were a few gems that cried out to be written about.

Continue reading the full story . . . »


Electronic Arts Fumbles in Lawsuit Brought by College Athletes (again)

College sports is big business.  Student-athletes generate truckloads of cash for their schools, but are prohibited by NCAA rules from sharing in the haul.  In fact, if the student-athlete learns that someone is commercially exploiting his or her name or picture, NCAA rules require the student “to take steps to stop such an activity in order to retain his or her eligibility for intercollegiate athletics.”  (Wouldn’t we all have loved to have had that problem in college….)

Given this state of affairs, when Electronic Arts made its NCAA Football games using the likenesses of college athletes, it could not have obtained licenses from the students even if it had wanted to.  That would have violated NCAA rules.  So what happens when EA uses the likenesses of college athletes without permission, makes a bunch of money, and then doesn’t compensate the students?  After graduation, once they are no longer bound by NCAA rules, they all sue, of course!

  Continue reading the full story . . . »


Leggo My Likeness, Part Four

There are so many fun things you can do with celebrities.  In addition to the traditional things like writing books about them, you can also use their catchphrases to make greeting cardsmake movies about them using puppets; or even use claymation television to have them fight each other to the death.  But what about including digital representations of them in a video game?

new case reinforces the holding of a previous case which stands for the proposition that you can’t put celebrities in a video game and then have them do exactly what they normally do in real life.  (For example, a game like “Lindsay Lohan:  Escape from Rehab” simply would not work).

Unfortunately, the case also sets a bad new precedent.

The case in question is called Hart v. Electronic Arts and represents a dangerously subtle evolution in right of publicity law.  In a 2-to-1 decision, a three judge panel ruled that various NCAA Football games, made by Electronic Arts (EA), did not “sufficiently transform” the identity of a college football player named Ryan Hart to escape his claim that EA violated his right of publicity.

At first blush, it seems that the 3rd Circuit simply copied the “transformative use test” used by the 9th Circuit.  Upon closer inspection, however, it becomes apparent that the 3rd Circuit took the analysis one step further.

The majority began its analysis by reasoning that “[t]he digital Ryan Hart does what the actual Ryan Hart did while at Rutgers: he plays college football, in digital recreations of college football stadiums, filled with all the trappings of a college football game.”  The majority opinion then chastised EA for seeking to increase profits by capitalizing “on the respective fan bases for the various teams and players” by creating “a realistic depiction of college football for the users.”  However, as the dissenting judge recognized, the inclusion of realistic player likenesses to increase profits should have nothing to do with First Amendment protection.  In fact, by making such a distinction, the result is a “medium-specific metric that provides less protection to video games than other expressive works.”

In his dissenting opinion, Judge Thomas Ambro argued that EA’s use of real people as “characters” in its sports games should be treated the same way as portrayals of individuals (fictional or nonfictional) in movies and books.  (After all, who would want to play Tim Tebow in a football game if you couldn’thave him get down on one knee and start praying?)  Along these lines, when an author writes a historical novel, biography, or other book inspired by or involving famous people, the First Amendment protects the author’s right to realistically portray those people.  The same protection applies to filmmakers.  When Oliver Stone made the biographical film “W,” about former President George W. Bush, an obvious goal of the film was to have Josh Brolin’s portrayal of George W. Bush as realistic as possible to increase the likelihood of satisfied movie-goers.  (Naturally, this required pronouncing the word nuclear “nuke-ya-lure,” and including lines like “Whose job is it, to find these damn weapons?” and “I believe God wants me to be president!”)

To be clear, Judge Ambro does not suggest that the First Amendment should protect all digital portrayals of real people, but simply those in which the likeness, as included in the creative work, has been transformed into something more or different than it was before.  This is the test used by the 9th Circuit.  It is also the test articulated by the majority opinion.

Why, then, did the majority end up with a different conclusion than the dissent?

In a footnote to his dissenting opinion, Judge Ambro observes that when the transformative use test was originally developed, California’s Supreme Court borrowed the concept from the “purpose and character of the use” factor relevant to a copyright fair use defense.  In Judge Ambro’s view, the majority opinion permitted “another fair use factor to creep into their transformative analysis.”  Specifically, he observes that the majority also considered the fourth fair use factor, i.e., “the effect of the use upon the potential market for or value of the copyrighted work.”  Judge Ambro concludes his footnote by pointing out that the California Supreme Court expressly excluded this factor when it originally developed the transformative use test in the famous Three Stooges Case.

Yet, the problem remains; an uninvited fair use factor regarding marketability which has no business in a transformative use analysis.  At least in the 3rd Circuit.

In the meantime, video game developers would do well to heed the message in this case:  It is risky to include super-realistic, digital representations of celebrities or athletes in a video game engaging in their normal behavior.  The safest thing to do is change the celebrity’s actual appearance, behavior, and context in which the celebrity appears.  Changing just one of these things—e.g., context—may not be enough.

For example, in the No Doubt case, simply putting a rock band into a fanciful context like outer space did not render the use of the band’s likeness transformative because the band still looked like the band and still did all the same things the band normally did.  By comparison, Kirby v. Sega taught us that the transformative test is satisfied if you give a celebrity a new name, a new appearance, and the lovable story of having been “dispatched to investigate an invasion of Earth by dance-loving aliens who shoot earthlings with ray guns, causing them to dance uncontrollably.”

In the end, what bothers me most about the Hart v. Electronics Arts opinion is a throw-away point raised by an amicus brief.  The section of the brief highlighted by the court reads:

“Under [EA’s] application of the transformative test, presumably no infringement would be found if individuals such as the Dalai Lama and the Pope were placed within a violent ‘shoot-em-up’ game, so long as the game included a ‘mechanism’ by which the user could manipulate their characteristics.”

Why did the court highlight this point?  It seems to imply that a video game cannot realistically depict celebrities in any context, even if their behavior is abnormal or uncharacteristic.  Although the court did not expressly make such a statement, the “concern” it evinced is distressing.

I suppose that if anything is clear, it’s that these judges need to start playing more video games.


This Is Our Super Bowl Blog Post. Now Come and Get Us, NFL!

[In honor of Super Bowl XLVII — because everyone knows that Roman numerals make everything very distinguished and significant — we’re bringing back one of our most-read, and most personally-favored posts.  Enjoy your SUPER BOWL PARTY, everyone.]

Unless you live here, I’m assuming you’re aware of a little football game taking place this weekend between the San Francisco 49ers and the Baltimore Ravens.  (And maybe, just maybe, you might have heard something — but probably nothing original — about that whole Harbowl storyline.  Well here’s a little-known wrinkle about it.)

I’m as excited as anyone for the game, which is why, this Sunday, I might try to find a local bar hosting a Super Bowl party. But I’ll probably be out of luck, unless I’m willing to go to a “Big Game” party instead. And if I’m feeling spendthrift — the always-confusing word that sounds like “thrifty” but actually means “profligate” — I might try to pick up a new flat-screen TV at a Super Bowl sale. But unless I’m willing to settle for one of those ubiquitous “Big Game” sales, I’ll probably be forced to stick with what I’ve got.

biggame

Every year, while every sports yak in America is obsessing over Super Bowl scouting reports, every business in America is trying to capitalize on the game. But most of them aren’t using the words “Super Bowl” to do so, and the reason is fairly obvious: the phrase “Super Bowl” is trademarked by the NFL, which is famously protective of its intellectual property. Moreover, the privilege of using the phrase “Super Bowl” in advertising is one of the valuable rights bestowed by the NFL upon its advertisers and promotional partners — which gives the NFL extra incentive to keep freeloaders from poaching the phrase (thereby diminishing its value to potential paying promotional partners).

But what if the NFL is wrong? What if I really could check out the Super Bowl party at my favorite watering hole without them being subjected to the threat of legal doom?

Guess what, folks: I can.

Continue reading the full story . . . »