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Week in Review

By Martha Nimmer

Picture This

Instagram, Facebook's billion dollar baby, is poised to change its Privacy Policy and Terms of Service starting in 2013. The proposed changes have already shocked the Instagram world, from professional photographers who use the app to showcase their works to a global audience, to Brooklyn hipsters who chronicle their newest vegan, locally sourced brunches. The changes will go into effect on January 16th, but will not apply to pictures uploaded to Instagram before that date.

The proposed changes include modifications to how Instagram utilizes users' personal information, to how Instagram may use and market users photos. For instance, under the new privacy policy, Instagram is permitted to share user information with its parent company, Facebook, and outside affiliates and advertisers. The goal behind this change, according to Instagram, is to permit it and Facebook to communicate more seamlessly about its users. Another change, which has received much uproar from users, has to do with the "Rights" section of the Terms of Service. Under the new Terms, Instagram is now allowed to use its users' photographs and identities in advertisements. Specifically, the Terms state: "You agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you . . . ." According to the New York Times, Marc Rotenberg, executive director of the Electronic Privacy Information Center, said that the use of a person's likeness in ads could "run into some state laws protecting people's privacy." Practitioners of privacy law and lawyers with even the most basic knowledge of state right of privacy/right of publicity laws will likely comment that this modification to the Instagram Terms of Service will likely run afoul of state law, possibly culminating in pricey class actions if these changes are actually implemented.

Instagram has also said that underage users are not exempt from the above changes. According to the New York Times, "Although Instagram says people must be at least 13 years old to sign up for the service, the new terms note that if a teenager signs up, they are agreeing that a parent or guardian is aware that their image, username and photos can also be used in ads." Although Instagram may insist that its underage users are not exempt under the new terms of service, state and federal laws aimed at protecting minors, such as the Children's Online Privacy Protection Act (COPPA), say differently. COPPA, which took effect in 2000, applies to websites that are developed expressly for children, but also covers any online service that is likely to be used by children or that collects information from children.

Creeped out yet? Upset? Too bad, says Instagram. The only way to "opt out" of these changes is to delete your account--Instagram's new Terms of Service state that "by accessing or using the Instagram website, the Instagram service, or any applications (including mobile applications) made available by Instagram (together, the "Service"), however accessed, you agree to be bound by these terms of use." In response to these changes, other photo sharing sites like Flickr have been trying to attract Instagram.

http://bits.blogs.nytimes.com/2012/12/17/what-instagrams-new-terms-of-service-mean-for-you/?ref=business

Read the text of the proposed changes here: http://instagram.com/about/legal/terms/updated/

Read the text of COPPA here: http://www.ftc.gov/ogc/coppa1.htm

"I'm your biggest fan, I'll follow you until you love me / Papa, paparazzi"

Many thanks to Lady Gaga for those fitting lyrics. Now, we turn to California, where the State's Attorney is hoping to save a state motor vehicles law enacted to dissuade paparazzi from reckless driving while pursuing celebrities. Last week, attorneys for the State of California petitioned the Appellate Division for a review of Los Angeles Superior Court Judge Thomas Rubinson's decision to overturn the 2010 law, calling it an impingement of the First Amendment. Paul Raef, a California-based photographer, was prosecuted under Section 40008 for allegedly driving 80 MPH on a busy Los Angeles street as he pursued teen heartthrob Justin Bieber in November of this year.

Raef's attorney argued that the law at issue was overbroad, thereby failing to satisfy constitutional scrutiny. The attorney added that if California wanted to prevent paparazzi from driving recklessly, the state should increase the penalties for such conduct, instead of passing a law that could be used to punish or deter members of the press from pursuing news-gathering or other First Amendment-protected activities. In response, the Los Angeles City Attorney argued that the criminal penalties used in the past have proven insufficient in deterring paparazzi from engaging in reckless driving. In their petition for appellate review, the State's attorneys also argue that Judge Rubinson used the wrong level of scrutiny when assessing the constitutional validity of the law, attributing this error to a fundamental misunderstanding of First Amendment jurisprudence.

Although at first blush the law appears exceedingly applicable to media outlets that drive recklessly when investigating the news, Section 40008 is actually applicable to any person, not just one carrying a camera or a microphone: "It was a criminal law of general application that applied to any person, including news-gatherers," states the appellate petition. The law is content neutral due to this general applicability and thus receives intermediate scrutiny as per U.S. Supreme Court precedent. Intermediate scrutiny requires the government to prove that the statute at issue involves important governmental interests, and that the law is substantially related to achieving an important governmental purpose.

The State's petition has requested an immediate stay of trial court proceedings.

Scroll down for the full text of the petition: http://www.hollywoodreporter.com/thr-esq/california-justin-bieber-paparazzo-state-401966

Read the California statute here: http://www.dmv.ca.gov/pubs/vctop/d17/vc40008.htm

Federal Felines

Ernest Hemingway is known for many things: his writing, his love of Cuba and his news coverage of the Spanish Civil War. Hemingway was also the proud owner of a six-toed cat named Snowball. Now, Snowball's polydactyl descendants are subject to federal regulation by the Department of Agriculture. How, you may ask? Well, they apparently "substantially affect interstate commerce," at least according to the 11th Circuit Court of Appeals.

These federal felines can be found at Hemingway's former Key West home, now a museum. The cats number from 40 to 50, and live and roam freely on the grounds that are enclosed by a brick fence at the property's perimeter. According to the decision, "no Hemingway cat has ever been bought or sold, although some cats have been given away at various times. However, the Museum charges admission for a tour of the property, and the tour includes seeing and discussing the roaming Hemingway cats. Approximately 250,000 visitors from within and beyond Florida visit the Museum annually. The Museum's gift shop sells cat-related merchandise online and at its physical location." As the cats are so important to the museum's continued vitality and commercial success, the exhibition of the cats affects interstate commerce, which brings the cats under the purview of Congress and the Interstate Commerce Clause of the U.S. Constitution.

What does this mean for the whiskered residents of the Ernest Hemingway Home and Museum? It looks as if the museum will have to cage the cats at night, construct a higher fence to contain them or hire a security guard to keep on an eye on them at night. The museum may also have to "tag each cat and construct 'elevated resting surfaces' for the animals," according to the 11th Circuit.

http://www.abajournal.com/news/article/hemingway_cat_descendants_are_regulated_by_federal_law_appeals_court_says/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email

Read the decision here: http://www.ca11.uscourts.gov/opinions/ops/201114217.pdf

Slap Shot

Earlier this week, in anticipation of an antitrust suit brought by the National Hockey League Players' Union, the National Hockey League (NHL) and its teams filed suit in federal court in Manhattan against the players' union. The NHL's suit comes in response to actions by the Executive Committee for the NHL Players' Association (NHLPA) authorizing a vote to determine whether the union's leadership may "disclaim interest in its role as the exclusive bargaining representative of NHL players so that the NHL players could commence antitrust litigation against the NHL." The NHL has called this move "an impermissible bargaining tactic," the goal (no pun intended) of which is to gain "more favorable terms and conditions of employment in ongoing collective bargaining negotiations with the NHL."

According to the NHL's 43-page complaint, the NHLPA's "improper threats of antitrust litigation are having a direct, immediate and harmful effect upon the ability of the parties to negotiate a new collective bargaining agreement." The NHL has sought a declaration that the ongoing lockout does not violate antitrust laws, specifically, the Clayton Antitrust Act, and consequently, cannot be enjoined or result in any damages to the defendants. The owners further claim "that the Norris-LaGuardia Act deprives the federal courts of jurisdiction to enjoin or restrain the ongoing lockout . . . ." This latest suit does not bode well for hockey fans: the owners' lockout threatens to cancel the entire NHL season, for the second time in nine years.

Football fans will recall a similar turn of events in the 2011 case Brady v. NFL, et al., wherein the National Football League Players' Union was "decertified" by the players, who professed to have become not a union, but "simply a collection of individual players." Essentially, the NFLPA members felt that by decertifying their union, the players could "force" antitrust scrutiny of the owners' lockout. Whether a similar outcome results in the ongoing dispute between NHL players and owners remains to be seen.

http://www.courthousenews.com/2012/12/17/53170.htm

Read the Norris-LaGuardia Act here: http://uscode.house.gov/download/pls/29C6.txt

I Volunteer As Tribute!

Unfortunately for online retailer Yagoozon, Inc., it does not appear as if anyone will be volunteering to take its place in a lawsuit brought against it by Lions Gate Entertainment, the producer and distributor of the hit movie The Hunger Games.

Last week, Lions Gate filed suit in the Central District of California, alleging claims of federal and common law trademark infringement, false designation of origin, federal and state law trademark dilution, state and common law unfair competition and copyright infringement. The crux of the suit centers on Yagoozon's production of a "mockingjay pin," a version which was used on the cover of Suzanne Collins' book and appears on the official poster for the next film in the trilogy, The Hunger Games: Catching Fire. Readers familiar with the book or the first film will recall that the mockingjay pin was protagonist Katniss Everdeen's "tribute token" during the annual Hunger Games, and came to symbolize rebellion against the Games and its organizer, the Capitol. The pin has also become part of a billion-dollar franchise, and Lions Gate has "taken a number of steps to register the 'mockingjay logo' at the Trademark Office."

Given how popular the Hunger Games trilogy has become, Lions Gate has been robust in defending its intellectual property rights in the works. According to the complaint, the defendants attempted to purchase Hunger Games merchandise, including the mockingjay pin, from Lions Gate licensee National Entertainment Collectibles Association (NECA). Yagoozon CFO Benjamin Joseph later sent a letter to NECA, threatening an antitrust lawsuit if NECA did not sell the requested merchandise. NECA still refused to supply the items, and shortly thereafter, Lions Gate discovered that the defendants were selling counterfeit Hunger Games merchandise online, including the iconic mockingjay pin. Included with the pin, the plaintiff claims, was packaging "virtually identical" to NECA's Lions Gate-authorized packaging. Looking at the complaint (linked to below), one can see from the exhibits that the packaging is essentially indistinguishable, aside from, perhaps, the slightly sepia tone on Jennifer Lawrence's face on the Yagoozon packaging. In its prayer for relief, the studio seeks a permanent injunction against the production, sale or marketing of the infringing items, as well as damages and disgorgement of profits earned as a result of the infringement.

Given the degree of similarity between the NECA-produced Hunger Games merchandise and the allegedly counterfeited Yagoozon-made items, it does not appear that that odds will be ever in the defendants' favor...

http://www.hollywoodreporter.com/thr-esq/lionsgate-sues-protect-hunger-games-405093

Read the complaint here: http://www.scribd.com/doc/117497980/Hunger-Games

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This page contains a single entry from the blog posted on December 20, 2012 10:45 PM.

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