Privacy and Media Archives

October 18, 2009

Shepard Fairey Lied

It appears that Shepard Fairey lied, deliberately destroyed evidence of the actual image used in the Obama Hope poster, and in a cover-up, created false documents to support his fraud. He has now issed the below press release in apology. Fairey's attorneys have given notice to AP that they intend to withdraw upon his acquiring new counsel.

For Immediate Release
Contact: Jay Strell- Sunshine, Sachs & Associates,
(212) 691-2800/ (917) 362-9248 cell

OCTOBER 16, 2009

In an effort to keep everyone up to date on my legal battle to uphold the principle of fair use in
copyright laws, I wanted to notify you of a recent development in my case against The
Associated Press (AP).

On October 9, 2009, my lawyers sent a letter to the AP and to the photographer Mannie Garcia,
through their lawyers, notifying them that I intend to amend my court pleadings. Throughout the
case, there has been a question as to which Mannie Garcia photo I used as a reference to
design the HOPE image. The AP claimed it was one photo, and I claimed it was another.
The new filings state for the record that the AP is correct about which photo I used as a
reference and that I was mistaken. While I initially believed that the photo I referenced was a
different one, I discovered early on in the case that I was wrong.

In an attempt to conceal my mistake I submitted false images and deleted other images. I
sincerely apologize for my lapse in judgment and I take full responsibility for my actions which
were mine alone. I am taking every step to correct the information and I regret I did not come
forward sooner.

I am very sorry to have hurt and disappointed colleagues, friends, and family who have
supported me in this difficult case and trying time in my life.

I am also sorry because my actions may distract from what should be the real focus of my
case - the right to fair use so that all artists can create freely. Regardless of which of the two
images was used, the fair use issue should be the same.

October 19, 2009

Shepard Fairey Litigation - The AP's Response

Statement from Srinandan R. Kasi, VP and General Counsel, The Associated Press

Striking at the heart of his fair use case against the AP, Shepard Fairey has now been forced to admit that he sued the AP under false pretenses by lying about which AP photograph he used to make the Hope and Progress posters. Mr. Fairey has also now admitted to the AP that he fabricated and attempted to destroy other evidence in an effort to bolster his fair use case and cover up his previous lies and omissions.

In his Feb. 9, 2009 complaint for a declaratory judgment against the AP, Fairey falsely claimed to have used an AP photograph of George Clooney sitting next to then-Sen. Barack Obama as the source of the artist’s Hope and Progress posters. However, as the AP correctly alleged in its March 11, 2009 response, Fairey had instead used a close-up photograph of Obama from the same press event, which is an exact match for Fairey’s posters. In its response, the AP also correctly surmised that Fairey had attempted to hide the true identity of the source photo in order to help his case by arguing that he had to make more changes to the source photo than he actually did, i.e., that he at least had to crop it.

After filing the complaint, Fairey went on to make several public statements in which he insisted that the photo with George Clooney was the source image and that “The AP is showing the wrong photo.” It appears that these statements were also false, as were statements that Fairey made describing how he cropped Clooney out of the photo and made other changes to create the posters.

Fairey’s lies about which photo was the source image were discovered after the AP had spent months asking Fairey’s counsel for documents regarding the creation of the posters, including copies of any source images that Fairey used. Fairey’s counsel has now admitted that Fairey tried to destroy documents that would have revealed which image he actually used. Fairey’s counsel has also admitted that he created fake documents as part of his effort to conceal which photo was the source image, including hard copy printouts of an altered version of the Clooney Photo and fake stencil patterns of the Hope and Progress posters. Most recently, on Oct. 15, Fairey’s counsel informed the AP that they intended to seek the Court’s permission to withdraw as counsel for Fairey and his related entities.

The AP intends to vigorously pursue its countersuit alleging that Fairey willfully infringed the AP’s copyright in the close-up photo of then-Sen. Obama by using it without permission to create the Hope and Progress posters and related products, including T-shirts and sweatshirts that have led to substantial revenue. According to the AP’s in-house counsel, Laura Malone, “Fairey has licensed AP photos in the past for similar uses and should have done so in this case. As a not-for-profit news organization, the AP depends on licensing revenue to stay in business.” Proceeds received for past use of the photo will be contributed by the AP to The AP Emergency Relief Fund, which assists staffers and their families around the world who are victims of natural disasters and conflicts.

April 29, 2010

Should violent video games be disqualified as speech?

By Marie-Andrée Weiss

The U.S. Supreme Court agreed this week to review next term the constitutionality of a California law prohibiting the sale of violent video games to minors, Schwarzenegger v. Video Software Dealers Association (08-1448).

This law was to take effect on January 1, 2006, as new California Civil Code §§ 1746-1746.5, but the Video Software Dealers Association and the Entertainment Software Association challenged it as violating the Free Speech Clause of the First Amendment, which is made applicable to the states through the Fourteenth Amendment.

A district court permanently enjoined enforcement of the law, and the State of California appealed. The Ninth Circuit affirmed the district court judgment, and the Supreme Court granted certiorari on April 26, 2010.

First question presented to the SCOTUS: Does the First Amendment bar a state from restricting the sale of violent video games to minors?

The first question that was presented to the Supreme Court is whether the First Amendment bars a state from restricting the sale of violent video games to minors.

The California law prohibits the sale of violent video games to minors if “a reasonable person, considering the game as a whole, would find [that it] appeals to a deviant or morbid interest of minors.”

This is not the first time that the Supreme Court must consider whether the definition by a state law of what constitutes material unprotected by the First Amendment, may vary according to the group to whom the material is directed. In Ginsberg v. New York, 390 U. S. 629 (1968), the Supreme Court held that a New York criminal obscenity statute could prohibit selling materials to minors even though these materials were not considered obscene for adults.

Variable obscenity standard

Obscene material, which is not protected by the First Amendment, is defined as whether, to the average person applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest of a person. This definition is similar to the wording of the California video game statute.

In Ginsberg, the Supreme Court applied a “variable” standard for obscenity. The State could bar selling to minors material defined as obscene on the basis of its appeal to minors (Ginsberg, at 631), because there is an important state interest in protecting the welfare of minors. The State of California argued in front of the Ninth Circuit that this variable standard should apply as well to the regulations of violent videos sold to minors.

Strict scrutiny standard

However, the Ninth Circuit refused to apply that variable standard, and applied instead the strict scrutiny standard, Video Software v. Schwarzenegger 556 F.3d 950, 2009. According to the Ninth Circuit, the California Act must be narrowly tailored to promote a compelling Government interest, because it is a content-based restriction. If a less restrictive alternative is available, the legislature must use that alternative, United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813, (2000).

Should the depiction of violence become a new category of unprotected speech?

The governor of California argued in his petition for a writ of certiorari that the Ginsberg “variable obscenity standard” should apply to extremely violent material because such material “can be obscene as to minors, even without a sexual element.”

Obscenity is not protected by the First Amendment. However, violent video games, if devoid of sexual content, are a protected form of speech. For instance, the Eighth Circuit held that videos “contain[ing] violence but not depictions or descriptions of sexual conduct cannot be obscene,” Video Software Dealers Association v. Webster, 968 F.2d 684, 688 (1992).

In U.S. v. Stevens (08-769), the Supreme Court refused this month to add the depiction of animal cruelty to the list of the few categories of speech which may be disqualified as speech. Just as some video games merely portray violent acts, the federal statute which was held unconstitutional in Stevens only criminalized the portrayal of animal cruelty, not the actual acts of cruelty, which are indeed unlawful in all 50 states and in the District of Columbia.

The “exception clause”

The Government had argued in Stevens that the Supreme Court should use a balancing test, measuring the value of the speech against its societal costs, to determine whether such speech should be protected by the First Amendment. Indeed, the Government was seeking the total ban of depiction of animal cruelty, except if, under an “exception clause,” such depictions had “serious religious, political, scientific, educational, journalistic, historical or artistic value.”

While the Supreme Court had held in Miller v. California, 413 U.S. 15 (1973) that having a “serious” value shields depictions of sex from being considered obscene, the Supreme Court was careful in Stevens to explain that the mere determination of some material having “serious” value cannot be used “as a general precondition” to protect other types of speech as obscene speech, and thus such clause was not sufficient to narrowly tailor the statute.

The federal “exception clause” at stake in Stevens was similar to the wording of the California law, forbidding the sale of violent video games to minors only if such games lack “serious literary, artistic, political or scientific value for minors.” It is thus likely that the Supreme Court will also consider next year the California “exception clause” as being insufficient to narrowly tailor the statute.

Second question presented to the SCOTUS: Is the State required to demonstrate a direct causal link between violent video games and physical and psychological harm to minors in order to prohibit the sale of violent games?

The second question presented to the Supreme Court is whether, if indeed the standard to apply is the strict scrutiny standard, the State must demonstrate a direct causation between violent video games and the resulting harm to minors.

California had passed the Act because it was concerned about the actual harm to the brain of the child playing video games. Protecting the well-being of minors is indeed a compelling interest, Sable Commc’ns of Cal., Inc., 492 U.S. 115, 126 (1989). However, in Turner Broadcasting System, Inc., 512 U.S. 622 (1994), the Supreme Court had held that, when seeking to restrict speech, the Government “must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.” Id., at 664.

The Ninth Circuit was not convinced by the evidence of harm presented by the State, as this research was based on correlation, not evidence of causation. Since the State failed to prove direct causation, it also failed to demonstrate the existence of a compelling Government interest.

The State cited Turner Broadcasting System in its petition, but argued that the Supreme Court had also held in this case that ”a court must accord substantial deference to the predictive judgments of Congress.” Id., at 665. Therefore, according to the petitioner, a state’s predictive judgments must be upheld so long as a court finds that “in formulating its judgments, [the state] has drawn reasonable inferences based on substantial evidence.” It is doubtful that the Supreme Court will be convinced by these arguments.

In conclusion, it is very unlikely, in spite of the changes ahead in the composition of the Supreme Court, that violent video games will no longer be protected as speech. Instead, parent warnings and voluntary rating systems will probably continue to be employed to protect minors from ill effects of violent games.

September 8, 2010

Whose Life is it Anyway? Clearance of Life Story Rights in Film

By Diane Krausz

The right to privacy is one of the most treasured fundamental rights in American society. Another treasured fundamental right is freedom of expression. A great deal of filmed media involves the re-imagination of historic events, the examination of public figures and their private lives, or the dramatization of the lives of private citizens with compelling, interesting or unusual stories. Often, the right of a film maker’s freedom of expression can overshadow or destroy an individual’s right of privacy, particularly for a private citizen. Attorneys who advise screenwriters, producers and film financiers often need to weigh the existing state laws, precedents and particular facts of a matter to determine how to advise their clients in this confusing area.

Even a first year film student understands that writing a screenplay based upon someone's life can raise significant legal issues. Law students are taught to analyze the facts; specifically, to classify the characters of a script into the "living" or "dead", "private" or "public” citizen, and the specific issues in a scene (“newsworthy”, “private matter” or “public matter”), as this can make all the difference when determining whether the depiction of a particular individual in a specific scene constitutes infringement on someone’s ”right to publicity” or is permissible because of “fair use.” Note that a right to privacy is a protected right of an individual to non-interference by others, while the right of publicity is an individual’s right to exploit and profit from the exploitation of the exact things he or she is entitled to protect under the right of privacy.

A right of publicity is typically defined as an individual’s right to control and profit from the commercial exploitation of his or her name, likeness, image, or persona. In order to grant a right of publicity in New York State, the individual must give permission for such use in writing. In order to use a person’s name and likeness in New York, one must look to N.Y.Civil Rights Law 50 and 51. Absent the obtaining of a signed release, a private individual may have a cause of action if private information about him or her is disclosed in a film, and if such information is offensive, embarrassing or defamatory.

However, the private individual could lose the right to object to the public dissemination of the above information if a court determines that the story and/or facts disclosed is/are something that the public needs to or should know, e.g., is "newsworthy", and that there is a "public need" to share the story. For information to fall within the newsworthy exception the information must: 1) Be a current news item, or a past event currently disseminated for informative purposes, 2) be a media presentation on public issues, or 3) be based on historic information. This means that fair use extends to underlying events discussed in the film containing information obtained during a private information session, but already available to the public (for example, court records, newspaper, etc.). Of course, the actual record cannot be reproduced or read verbatim, since that would infringe on the "actual means of expression" concerning the event. Again, one must always consider whether one can get the private individual in question to sign a permission or release, waiving his or her right to sue, or whether the facts disclosed are already in the public domain.

Screenwriters who cannot obtain releases from unwilling or unavailable individuals are often advised to craft characters and situations that are inspired by actual people and events, but where no individual is identifiable in the resulting film. Another approach is to create a "composite" character, which represents a number of various participants in a particular life story, but does not resemble or be identified as a specific individual.

Even in this age of sophisticated film students and eager life story litigants, rarely does a screenwriter or creative producer analyze a screenplay in the same way as a production attorney at a studio, or an attorney who clears errors and omissions insurance for a film prior to distribution. Post production decisions regarding the need for additional releases can often hold up the financing or distribution of a film until such a clearance is obtained. Absent the ability to obtain the mandated written waivers/permission, significant edits and other changes dictated by legal and business rather than creative concerns are often made to a final film prior to distribution.

It is important to note that the right of publicity is not a federal right. Therefore every state has a different view on what constitutes “infringement” and what is “fair use.” For example, in New York a photographer may not need permission to take someone’s picture and make the photograph a special feature at his next exhibit (see Nussenzweig v DiCorcia, 832 N.Y. S. 2d 510). However, in May, Judge Trauger of the Middle District Court of Nashville Tennessee refused to dismiss the plaintiff’s claim in summary judgment in Samuel David Moore et al. v. The Weinstein Co. LLC, opining that the use of Samuel David Moore’s identity as the basis for a character in the film “Soul Men” could sustain a cause of action for breach of right of publicity against a defense of First Amendment privilege.

It is important to point out that a claim for violation of a right to someone’s publicity is not limited to the main subject of a film or story. If there are ancillary individuals involved in the film, it is necessary for to obtain permission for the depiction of their names, likenesses, etc., especially if the dramatized depiction of the events was not previously recorded in a public manner. The upcoming release of the film, The Social Network, based on the actual facts surrounding the creation and creators of “Facebook”, has recently received quite a bit of media attention to the issue of whose and what rights producers should clear when dealing with recent, highly public and litigated issues concerning disagreement as to facts. A New York Times article by Michael Cieply and Miquel Helft correctly stated that "filmmakers often elect not to buy rights for people who figure only marginally in a picture....But studios like to lock down the rights to their principal living subjects if only so that they will not be bound to literal truth in their portrayals." An quote from one of the film’s producers, Scott Rudin, in The Wall Street Journal on September 3, 2010, excellently summarizes a film producer’s (and attorney’s) best legal justification for not obtaining releases from principals in connection with their portrayals in a film:

These guys (the major players in the Facebook lawsuits) all walked into a
courtroom to give their depositions-their version of the truth. And they told
three different stories. The movie exists in that grey area.

Personal experience has found that when negotiating life story rights with major studios, it is extremely difficult, if not impossible, to carve out, limit or modify any provision that gives the studio absolute control to make any and all changes to a story line, character, plot of any kind or nature, including a specific waiver of droit moral rights in European jurisdictions. The result of one very long but ultimately successful negotiation resulted from one client, a former head of a foreign government agency, to legally forbid the producers of a film from having him depicted in the act of personally carrying out the murder of anyone during the course of the film’s action. In other instances, film producers have been known to change the gender of an individual for a film, much to the consternation of the underlying life story owner/grantor.

Attorneys prefer well written and signed releases from anyone and everyone depicted in a film. If such releases are unavailable, the analysis and procedure for "clearing" the rights or "chain of title" to a film, including the need to obtain rights in and to life stories of characters in a film production, the decision of what creative edits are required often becomes a complicated and multi-tiered process. An ultimate resolution is often an imperfect combination of financial, practical, creative, legal and business considerations unique to the particular project in question.

June 28, 2011

Video Games, Even Violent Ones, Are Protected by the First Amendment

By Marie-Andrée Weiss

The U.S. Supreme Court decided by 7 to 2 in Brown v. Entertainment Merchants Association that video games, even violent ones, are protected by the First Amendment.

Representatives of the video game and software industries had challenged a California statute barring selling violent video games to minors. The U.S. District Court for the Northern District of California concluded that the statute violated the First Amendment and permanently enjoined its enforcement. The Ninth Circuit affirmed, and the Supreme Court granted certiorari last year.

Justice Scalia, writing for the majority, affirmed that:

"Like the protected books, plays, and movies that preceded them, video games communicate ideas--and even social messages--through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection."

This decision is not surprising if one remembers that the Supreme Court struck down last year in U.S. v. Stevens a federal law criminalizing the commercial creation, sale, or possession of certain depictions of animal cruelty "in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed," holding the law to be an impermissible content-based restriction on speech. Justice Scalia wrote that Stevens controls Brown.

Indeed, both laws are similar. Just as the federal law in Stevens, the California law prohibits the depictions of unsavory acts, not the actual commission of these acts. Cal. Civ. Code Ann. §§1746-1746.5 (West 2009) prohibits the sale or rental of "violent video games" to minors, that is, video games which would feature "killing, maiming, dismembering, or sexually assaulting an image of a human being." Disgusting acts indeed,"but disgust is not a valid basis for restricting expression", wrote Justice Scalia.

Indeed, "as a general matter ... government has no power to restrict expression because of its message, its ideas, its subject matter, or its content" (Ashcroft v. American Civil Liberties Union, 2002). There are however some exceptions and the content of speech may be restricted in a few limited areas, such as obscenity and fighting words.

The California statute only prohibits video games depicting such acts "in a manner that ... [a] reasonable person ... would find appeals to a deviant or morbid interest of minors, [or]... is patently offensive to prevailing standards in the community as to what is suitable for minors, [or if] the game, as a whole ... lack[s] serious literary, artistic, political, or scientific value for minors." Yet Justice Scalia wrote, somewhat caustically, that "mak[ing] violent-speech regulation look like obscenity regulation... does not suffice" as the obscenity exception to the First Amendment only covers depictions of "sexual conduct" (Miller v. California, 1973).

Speech about violence is not obscene, and therefore protected by the First Amendment, even though the California statute "mimics" a New York law prohibiting the sale to minors of sexual material that would be obscene from the perspective of a child, which the Supreme Court upheld in Ginsberg v. New York (1968). Justice Scalia noted that the United States does not have "a longstanding tradition... of specially restricting children's access to depictions of violence..." and added that children's books, such as the famous Grimm's Fairy Tales "contain no shortage of gore," reminding us that "Hansel and Gretel (children!) kill their captor by baking her in an oven."

Since the California statute imposes a restriction on the content of protected speech, the standard of review was strict scrutiny, and thus the statute must be justified by a compelling government interest and be narrowly drawn to serve that interest. California could not however, convince the Court of a direct causal link between violent video games and harm to minors, nor could it convince that the statute restrictions were justified by the substantial need of parents wishing to restrict their children's access to violent video games but who are not able to do so.

The opinion can be found at

March 9, 2012

Apple and Android Applications Access Private Data

By Leila A. Amineddoleh

Earlier this year, bloggers published findings that some of Apple's most popular applications could access private address book data without user consent. An Apple spokesman stated that "Apps that collect or transmit a user's contact data without their prior permission are in violation of our guidelines. We're working to make this even better for our customers, and as we have done with location services, any app wishing to access contact data will require explicit user approval in a future software release." (Perlroth, Nicole and Nick Bilton, "Mobile Apps Take Data Without Permission," Feb. 15, 2012, available at This statement elicited concern from two House Representatives, Democrats Henry Waxman and G.K. Butterfield. The legislators asked Apple to clarify its developer guidelines and security measures to protect users' information.

On February 16th, in response to the attention from the public and U.S. legislators, Apple stated that it will begin to require iPhone and iPad apps to obtain "explicit approval" in user prompts before accessing users' address book data. (Shih, Gerry, "Apple tweaks apps policy under lawmaker pressure," Feb. 15, 20120, available at

However, a test run by the New York Times questions the veracity of that assertion. To test security measures taken by Apple, the New York Times enlisted a developer to create a test app that requires permission to use a device's location and thus gain access to the phone's photos. The decoy app, PhotoSpy, asked for access to location data when it was opened. Once that information was provided, the app took photos and data location and sent it to a remote server. In essence, a third-party app could copy a user's private content, without gaining additional consent and without providing the user with further notification. A similar test was done with an Android developer, and the Android test app also gained access to users' photos.

In the case of Apple, if customers allow the application to access location data used for GPS-based applications, they also allow access to the users' photo and video files that can be uploaded to outside servers. For Android-based applications, the user only needs to allow the application to use Internet services as part of the app for third parties to gain access to photo albums.

David Jacobs, a fellow at the Electronic Privacy Information Center, criticized Apple for not protecting its customers' privacy. "Apple has a tremendous responsibility as the gatekeeper to the App Store and the apps people put on their phone to police the apps," he said. "It is pretty obvious that they aren't doing a good enough job of that." (Wolfe, Bryan M., "Another iOS Privacy Issue unfolding, This Time Concerning Your Photos," Feb. 28, 2012, available at

The Internet has been abuzz with these findings since the New York Times experiment was disclosed last week. On Sunday, U.S. Senator Chuck Schumer's office released a statement that called on the Federal Trade Commission (FTC) to launch an investigation into reports that Apple applications and Android platforms access users' personal photos and address books. Schumer stated: "When someone takes a private photo, on a private cell phone, it should remain just that: private." (Carew, Sinead, "Senator Schumer asks FTC to prove Apple, Android," March 4, 2012, available at

The Senator argued that the distribution of information to third parties reaches beyond a "reasonable" user's understanding of the scope of dissemination of information. Schumer opined that "smartphone makers should be required to put in place safety measures to ensure third party applications are not able to violate a user's personal privacy by stealing photographs or data that the user did not consciously decide to make public." (Id.)

The White House has also taken steps to protect privacy. Examination of the Obama Administration's Consumer Privacy Bill of Rights indicates the Administration's interest in protecting user privacy, by limiting not only the use of private information, but also the collection of it. The bill provides users with the right to "exercise control over what personal data companies collect from them and how they use it." (

The bill gives users the right to have their personal data held securely, control data collected and the way that it is shared, and avoid the dissemination of data used for another purpose. In addition, it calls for accountability and transparency by providing users with information as to the identity of companies misusing their personal data.

The Code will be enforced by the FTC, but Congress will also be developing legislation providing the FTC and State Attorneys General authority to enforce the Act. Privacy experts have asked whether federal regulation will hinder technological and communicative developments. However, the better question is whether legislation can keep up with the fast pace of technology innovation. Is it possible for the government to effectively regulate new means of communications that are being developed at breakneck speeds? Do enforcement authorities actually have the ability to police the vast exchange of information over the virtual marketplace? The Act leaves many questions unanswered; in particular, it does not provide a clear mechanism for policing service providers.

Access to the text of the Consumer Privacy Bill of Rights is available at:

February 10, 2015

Death and Dying - Film at Eleven. The Narrow Scope of Right to Privacy in New York

By Rosemarie Tully and Diane Krausz

In New York, your right to privacy dies with you, but should your consent be required for the filming of your death in the hospital emergency room? In the northeast, a variety of well-known hospitals regularly allow filming of emergency room activity along with commentary from the treating physicians and interaction among medical staff, patients, their family and friends - for television broadcast. Oddly enough, it seems that most subjects are open to having their real-life traumas splashed across the screen, but what of those patients that are not competent to give meaningful consent or die in the process? Is consent even required?

Thanks to a recent New York Times headline about the Chanko family's lawsuit regarding an episode of "NY Med," we will all be more aware of the possibility that our own dying on the table may be filmed and broadcast without our consent.

Mark Chanko, then 83, was rushed to New York Presbyterian after being hit by a truck while crossing a Manhattan street late one night in April 2011. Dr. Sebastian Schubl (known on "NY Med" as "Dr. McDreamy") was the supervising treating physician. When Mr. Chanko's adult children, his daughter-in-law, and his wife, Anita, arrived at the hospital, they were ushered into a separate room to wait for news about Mr. Chanko. Unable to save Mr. Chanko, Dr. Schubl delivered the sad news to the family. The grief-stricken family left the hospital unaware that Mr. Chanko's demise in the operating room and the family's reaction to the news of his death had been captured on film.

Over a year later, in August 2012, Anita Chanko tuned into to "NY Med" and saw the episode in which her husband dies. Although his face is blurred out and he is not otherwise identified, Mrs. Chanko recognizes his voice and body image and hears her husband asking Dr. Schubl, "Did you speak to my wife." These same words are flashed on the screen in big letters. Mrs. Chanko describes the episode: " husband is heard moaning. Bloody sheets are waived in front of the camera. My husband's blood is being displayed to me. Dr. Schubl then discusses with an unseen cast member cutting off a leg, narrates my husband's deterioration and asks, 'Anybody have a problem with calling it?'" She concludes with, "My husband has died before my eyes." Chanko v American Broadcasting Companies, Inc., et al., 122 A.D.3d 487, 997 N.Y.S.2d 44 (Anita Chanko aff.)

The Chanko family sued the network, American Broadcasting Companies, Inc. (ABC), the hospital, and the treating doctors, with Mrs. Chanko as plaintiff individually and on behalf of Mr. Chanko's estate. Among the claims were violations of §§50 and 51 of the New York Civil Rights Law, the right to privacy statute.

Regarding the right to privacy claims, defendant ABC moved to dismiss the complaint for failure to state a cause of action, arguing that (i) New York's right to privacy statute does not apply to news programs, and (ii) any claim that Mr. Chanko may have had died with him. In its decision dated November 18, 2014, the Appellate Division, First Dept., agreed. Chanko, supra.

"NY Med" is an ABC News documentary program and is described as real-life show that "... sheds light on the inner workings of hospital life by educating viewers about how different medical conditions are treated, how doctors make decisions about medical options, and other features of a workplace that routinely confronts life-and-death situations. ... there are successes and there are failures." Chanko, supra (ABC Brief, pp. 1, 2) It should be noted that upon the Chanko family's complaint to ABC after the initial broadcast, ABC responded with deference to the family by releasing a second version of the episode without the offending segment. The initial broadcast version is no longer available to the public. Chanko, supra (ABC Brief, p. 4)

In New York, meaningful discussion of the "right to privacy" begins in the early 1900s with Roberson v. Rochester Folding Box Co., 171 NY 538, 64 NE 442. Abigail Roberson, then a teenager in Rochester, NY, complained that the Franklin Mills Company printed about 25,000 posters using her photographic portrait (head and shoulders in profile) along with the words, "Flour of the Family" above "Franklin Mills Flour" below, framing her image. The posters were circulated among warehouses, stores, saloons, and other public places for display, including some in Rochester where Abigail's friends and acquaintances recognized her image. With her good name tarnished by these advertisements, Abigail suffered great humiliation, distress, and nervous shock requiring treatment by a physician. She sought $15,000 in damages and an order enjoining the Franklin Mills Company from further use of her image.

The lower courts found for Ms. Roberson, noting that if her beauty was of such value as a "trademark or an advertising medium, ... it is a property right which belongs to her." Roberson v. Rochester Folding Box Co., et al., 32 Misc. 344 (Sup. Ct., Monroe County, 1900); 64 A.D. 30 (4th Dept., 1901). This new-found property right was promptly extinguished on appeal. The New York Court of Appeals, by a 4-3 vote, determined that such a property right had no foundation in the law and would not only result in widespread litigation, but "litigation bordering on the absurd." It posited that once established as legal doctrine, the "right to privacy" would not be confined to restrain the publication of likeness, but would include the "publication of a word picture, a comment upon one's looks, conduct, domestic relations or habits." The right to free speech and public discourse would surely be threatened. While the Court of Appeals in Roberson would find no remedy for Abigail, it suggested that the legislature might provide distinctions for nonconsensual use of one's image for advertising purposes.

The New York legislature responded by enacting a privacy statute, making it the first state to establish a right to control the use of one's name and image, albeit a very limited right and one reserved only for the living. Civil Rights Law §50 makes it a misdemeanor to use a living person's "name, portrait, or picture" for advertising or trade purposes without having first obtained written consent of the person. CRL §51. provides the teeth for a civil action allowing the aggrieved victim to maintain an equitable action to prevent and restrain unlawful use of her or his image and sue and recover damages for any injuries sustained. The language of §50 remains unchanged from its 1909 version. CRL §51 was amended in 1995 to include the use of a person's "voice" in certain circumstances.

Soon after Roberson and the enactment of the statue, the doctrine of the newsworthy exception evolved: if the use of a person's name, portrait or picture has a real relationship with the context of the newsworthy item -and- is not used for trade purposes or an advertisement in disguise, then there is no violation of the statute. The real relationship requirement is notoriously broad, and even though the medium (e.g., magazine, television program, or documentary) contains advertising or has the attendant purpose of increasing audience or revenue, such use will not be deemed to be for trade purposes, and therefore not actionable. Messenger v. Gruner + Jahr Printing & Pub., 94 NY2d 436, 727 NE2d 549 [2000] The "newsworthy" exception has been expanded over time to include matters of public interest, all types of factual, educational and historical data, or even entertainment and amusement, concerning interesting phases of human activity in general. See Lemerond v Twentieth Century Fox Film Corp., No. 07 Civ. 4635, 2008 WL 918579, (SDNY Mar. 31, 2008) While all this may leave us with the uneasy feeling that the notion of privacy and the right to be left alone is just about non-existent, when we consider the role of social media in our lives and how we, as publishers of a sort, consistently expose ourselves and others (without their consent) to the world at large, the Roberson court's concern for free and unhampered public discourse has merit. Yet, there is something about death and dying that feels sacred, and we are disturbed that Mr. Chanko's last moments were filmed without his or his family's knowledge and then broadcast on national television.

While there is no relief for the family members under New York Civil Rights Law, and there would likely have been none for Mr. Chanko, had he survived, Mrs. Chanko remains undeterred and an appeal is planned. "If there's no applicable law, there most certainly should be," she told the New York Times. " I'm willing to just pursue it all the way. Why shouldn't there be a law against this kind of thing?"

As it happens, the New York Assembly is taking a look at modifying §51 to include a private right of action in the instance of unlawful surveillance and has introduced a bill to "allow victims of unlawful surveillance ... a civil cause of action to seek injunctive relief and damages when their privacy is violated." 2015 New York Assembly Bill No. 3576 While the purpose of the bill seems to be geared toward surveillance of a sexual nature, the publicity of the Chanko case may help shape its ultimate form.

In the meantime, you might want to consider adding a "do not film" clause to your healthcare directives, as dying in the E. R. in New York is not the private matter many of us may have assumed. It will not likely change the result vis a vis your right to privacy in New York, but at least you will have gone on record with your wishes.

October 23, 2015

Kanye West and Kim Kardashian West Settle With YouTube Co-founder

By Kelechi Ajoku

A lawsuit brought by Kanye West and Kim Kardashian against YouTube co-founder Chad Hurley was recently settled for $440,000. This settlement may challenge members of the media to think twice before violating the privacy rights of celebrities, especially if contractual agreements are involved.

In October 2013, Chad Hurley allegedly breached a confidentiality agreement by leaking footage of Kanye West's proposal to Kim Kardashian at AT&T Park. West rented the entire San Francisco Giants' stadium for the private event with friends and family, making the proposal unavailable to the public. The few guests who were present, Hurley being one of them, were required to sign confidentiality agreements. In the lawsuit, the couple alleged that the confidentiality agreement granted them exclusive property rights to the images, which were intended to be aired on the "Keeping Up with the Kardashians" E! series. ( According to West and Kardashian, Hurley manipulated his way into AT&T Park with the intention to broadcast the footage despite signing the agreement. ( Hurley responded that the confidentiality agreement was not binding on MixBit, his privately owned website to which he posted the footage, and therefore essentially not in violation of the agreement. (

The lower court held that the couple showed a plausible claim for breach of contract, fraud, and unjust enrichment. Although the Second Circuit upheld the ruling, West and Kardashian later agreed to settle the lawsuit.

While representatives of the media may have the right to photograph and videotape celebrities, when legally binding confidentiality agreements are involved, the courts decisions show that they should adhere to such agreements or risk lawsuits. Members of the media often photograph and videotape public figures, without the celebrities' knowledge, and post the images on websites, magazines and in other forms of media outlets. As public figures, there is a lessor expectation of privacy than non-public figures, and, therefore, usually little to no consequences for those capturing and disseminating the images and videos. However, when efforts are taken to secure privacy by enforcing confidentiality agreements and/or other measures, it is likely that such contracts will be legally binding.

Regardless of whether Kardashian allows the world into her private life by broadcasting it via the "Keeping Up with the Kardashians" series, her proposal was intended to be private and confidential until it was aired on her terms. Therefore, members of the media should take precautions in the future to avoid any legal problems associated with legally binding confidentiality agreements, and we may now see more celebrities using such agreements as a protective tool.

January 20, 2016

The 11 Contracts Every Artist, Songwriter & Producer Should Know: Video Production

By Steven R. Gordon

Steven R. Gordon (, is an entertainment attorney specializing in music, television, film and video. His clients include artists, songwriters, producers, managers, indie labels and music publishers as well as TV and film producers and digital music entrepreneurs. He also provides music and sample clearance services for producers of any kind of project involving music. Mr. Gordon is the author of The Future of the Music Business [] (Hal Leonard 4th ed. 2015).

The author gratefully acknowledges the assistance of Ryanne Perio, Esq. in the preparation of this article. Ryanne is a litigation associate at the WilmerHale law firm. He would also like to thank his intern Jena Terlip, 2L at Benjamin N. Cardozo School of Law, for her research and editing assistance.

This series of articles and the forms included in them have been created for informational purposes only and do not constitute legal advice. This article and other articles in this series should be used as a guide to understanding the law, not as a substitute for the advice of qualified counsel. You should consult an attorney before making any significant legal decisions.

The eighth installment of this 11-part series on basic music industry agreements focuses on the business of producing music videos. This article contains a form agreement that can be used to hire a video producer, as well as releases for people and locations appearing in videos. Although MTV does not play many anymore, music videos have become more important in breaking new artists than ever before. Before making your own video, though, it's important to know the legal ins and outs of producing them.


In the first part of this Introduction, I give a brief history of music video followed by a survey of how successful artists have used and continue to use them to launch their careers. The second part of the Introduction offers a summary of business considerations in producing videos.


1. Before Music Videos
Audiovisual presentations of music have existed since the first motion pictures containing sound. In fact, the first Hollywood "talkie," released in 1927, was a musical featuring Al Jolson called "The Jazz Singer." Before the invention of the video cameras, there were many musical short films featuring the performance of single songs, such as Frank Sinatra's patriotic "The House I Live In (That's America To Me.)" ( These films were sometimes shown before main features at movie theatres. In the 1960s, artists like the Rolling Stones and the Beatles started to make short form films of individual songs to promote their albums. The dawn of what we think of as music videos began in the 1970s. For example, in 1975, Queen commissioned the production of a video for its new single, "Bohemian Rhapsody," to show on Top of the Pops, a popular British TV show showcasing the week's top hit songs. In the U.S., Video Concert Hall was launched on November 1, 1979 as the first nationwide video music program on American television, predating MTV by almost three years.

2. MTV and the Birth of the Era of Music Videos on Television
In 1981, MTV launched by airing "Video Killed the Radio Star," and began an era of 24-hour-a-day music videos on television.

The founders of MTV, including Robert Pitman (current chairman and CEO of iHeartMedia, Inc. (formerly Clear Channel)), convinced record labels to produce more videos and give them to MTV for free, just as they gave free records to radio stations. The pitch was that the videos would promote the labels' records and increase sales. The only money MTV paid to the labels was a relatively small fee to secure exclusive rights to play select videos for a limited period of time. For instance, MTV paid Sony Music $4 million a year for such rights.

By the mid-1980s, MTV grew to play a central role in marketing pop and rock music. Many important acts of this period-- most notably Madonna, Aerosmith, The Who, Phil Collins, John Mellencamp, Phil Collins and Billy Idol-- owe a great deal of their successes to the seductive appeal of their videos. After years of controversy regarding the lack of diversity among artists on the network, MTV aired Michael Jackson's "Billie Jean," "Thriller" and other videos, which helped Jackson become the best-selling pop artist of all time.

However, by the late 1990s, MTV sharply decreased the number of videos it showed on its airways. Former MTV president Van Toeffler explained: "Clearly, the novelty of just showing music videos has worn off. It's required us to reinvent ourselves to a contemporary audience." A decade later, MTV was playing an average of just three hours of music videos per day, preferring cartoons such Beavis and Butt-Head and, later, unscripted reality shows, such as Jersey Shore. MTV continued to play some music videos instead of relegating them exclusively to its sister channels (such as MTV Hits), but around this time, the channel began to air music videos only in the early morning hours and in Total Request Live , which aired the 10 most requested music videos of the day. As a result of these programming changes, Justin Timberlake implored MTV to "play more damn videos!" while giving an acceptance speech at the 2007 Video Music Awards. Despite the challenge from Timberlake, MTV continued to decrease its total rotation time for music videos in 2007 and shut down TRL in 2008.

3. YouTube and the Rise of Cover Videos
YouTube was created by three former PayPal employees in February 2005. In November 2006, it was bought by Google for $1.65 billion. The online video sharing site is this generation's MTV. Artists like Beyoncé and Taylor Swift regularly have hundreds of millions of views for new videos, and their record companies and music publishers monetize them by allowing ads. YouTube keeps approximately 40% of the ad income, although the details of its formulas for arriving at the exact amount is not public record, and the balance is paid to the copyright owners.

YouTube allows you to share your videos with a worldwide audience. However, the thing that makes YouTube great for new artists--that it's so easy to upload and reach a huge audience--also makes it incredibly competitive. YouTube reports that hundreds of hours of video content are uploaded to its servers each minute. Unfortunately, therefore, although you have a potential audience of millions who you can directly reach with your video, standing out in the sea of other content is a huge challenge.

One way new artists have used YouTube to attract attention is to "cover," that is, re-record hit songs. A good example of an artist who was discovered from making covers is Justin Bieber. Before he was the erratic "bad boy" that many love to hate, Justin Bieber was just a kid from Stratford, Ontario. At age 12 Bieber began to regularly post covers of hit R&B songs on his YouTube channel under the username "kidrauhl."

As his videos got more and more views, he was eventually discovered by talent manager Scooter Braun. After tracking Bieber down, Braun flew the then-13 year old to Atlanta to record some demo tapes. Braun introduced Bieber to Usher, who reportedly beat out Justin Timberlake in a bidding war to sign the young YouTube star. After being signed by Usher, Bieber recorded his first album, released the single "One Time," and proceeded to have his face put up on tween bedroom walls everywhere. He's had three multi-platinum albums that have all reached number one on the charts, and continues to play to sold-out arenas all across the world.

Another example of how cover videos have launched careers is Vazquez Sound, a musical trio known for its covers of hits, including Adele's "Rolling in the Deep," which has garnered over 172 million views. In September 2014, Vazquez Sounds released its first original album, which was an instant hit that earned a nomination at the 2015 Latin GRAMMYs for "Best New Artist." Another example is the pop duo, Karmin. Karmin broke a couple of years ago with a string of clever, sassy covers of hits by acts such as Lil Wayne, Nicki Minaj, and Katy Perry. Alessia Cara, a 19 year old Canadian singer and songwriter, is another example. She is currently signed to Def Jam and is best known for hit single "Here," which reached the Top 20 in the United States. Before her original album was released, though, Cara was known for her acoustic song covers on YouTube.

4. YouTube Musical Celebrities
Other artists have made careers by producing original content for their YouTube channels. A prime example is Lindsey Stirling. She plays the violin, dances and then does them both at the same time. Stirling began posting videos of herself performing in 2007 after failing to be signed by a major record label. Now, she claims they are begging to sign her, but it's too late--she doesn't need them anymore. Explains Stirling: "It's a very loyal fan base that wants you to succeed because they found you. It wasn't some big radio station or record label that shoved art down someone's throat." Coming in fourth in Forbes' round-up of the most financially successful YouTube personalities, Stirling raked in $6 million in earnings last year. She has also released two albums, "Shatter Me" and "Lindsey Stirling", scored a book deal, and developed a lucrative touring career.

5. YouTube's New Subscription Service
YouTube recently unveiled its long-discussed paid subscription service, "YouTube Red." The new service offers ad-free versions of all current YouTube videos and additional exclusive content from some of the site's top creators, including PewDiePie and Lilly Singh, both of whom perform music as well as comedy. It launched on October 28, 2015 and costs $9.99 per month. YouTube Red will have a big emphasis on music, providing access to music streaming service Google Play Music and a new app called YouTube Music, which offers a Pandora-like personalized playlist based on a selected song or artist. Both music apps also have ad-supported versions that non-Red users can access.

6. Self-Made Indie Videos Launching Careers On Social Media Such As Vine & Instagram
Over the past several years, with the advent of smart phones with video capability, as well as greater connectivity across social platforms, an entirely new phenomenon has occurred with singer songwriters as well as rappers catapulting themselves to recognition and commercial success. They use self-contained performances on social media in addition to, or other than, YouTube. One example is Shawn Mendes. In 2013, when he was 15, Shawn Mendes began posting cover videos on Vine and picked up millions of views. The next year he was signed to Island Records and became the youngest artist to debut in the Top 25 with a song on the Billboard Hot 100.


1. Cover Videos
It is legally necessary to get a license from the owner of the song before making a cover video. However, YouTube has developed a system Content ID that deals with this issue. The system recognizes the identity of the cover song and then notifies the publisher. The publisher can then choose to order YouTube to take down the video, or let the video continue to play and "monetize" it. If the latter is chosen, YouTube splits the advertising revenue with the publisher. It is important to note that if the publisher chooses the second option, the artist performing the cover will not receive any of the fees generated by advertising. This, however, is to be weighed against the possibility of worldwide recognition discussed above.

Although Vine and Instagram do not employ Content ID, the music publishers have not, so far, cracked down on covers on these social networks. An argument could be made that the snippets played in these services are "de minimis," i.e., too trivial to amount to copyright infringement. It can also be argued in a litigation defense that these brief videos are "fair use." The argument would be that, under the doctrine of fair use, a person can use a brief excerpt of a copyrighted work if the new work is "transformative" of the original.

2. Work For Hire Production Contract
I was the Director of Business Affairs for TV & Video at Sony Music from 1991 to 2001. We produced over 250 videos each year that I worked there, and every video that Sony commissioned was a "work for hire." Under the copyright law, a work for hire is defined as follows:

(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

In the case of works made for hire, "the employer or other person for whom the work was prepared is considered the author ...[and] owns all of the rights comprised in the copyright."

Recently I worked with a small book publishing company that wished to produce a series of music videos to promote the new edition on one of its religious text books. The videos will feature songs by 12 different Christian rock acts. The agreement that we used to commission the videos was basically the same as Sony's work for hire agreement. I recommend to my artist clients the same business format for the production of their music videos. Re-published below is sample work for hire contract for producing a music video.

3. Releases
If you are either a new artist or a small label, and you wish to create a music video, in addition to using a work for hire agreement, you should also make sure that you will not have legal problems associated later on with any person or location depicted in your video. Although you should always have every side artist, model, dancer or actor in your video sign a release, some judgment is required when determining whether to secure a location release.

Personal Releases: If a label is commissioning a video, the artist's appearance in the video will generally be covered by the recording agreement between the artist and the label, which usually includes a provision specifically addressing music videos and giving the label the right to use the video for any promotional or commercial purpose. If an indie artist is appearing in a video, obviously he or she will not need a release for his or her own performance. Regardless of whether the commissioning party is a label or an artist, it will want to have any other person appearing or performing in the video sign a personal release giving the label or the artist, as the case may be, the right to use the video, including that person's appearance and/or performance in any and all media. Usually, the production company will handle this responsibility.

An example of a personal release is included below. Personal releases do not vary very much, although some contain more legalese than others. The basic point of any personal release, however, is that the person signing the release grants the artist or label all rights to use his or her appearance and/or performance in the video.

Note that the person signing such a release may have recorded the audio performance as a background vocalist or musician. A separate contract usually covers that audio recording, but the release contained below would cover that audio performance as well. Please also note that the release usually does not include financial remuneration; but if a musician, dancer or actor contributed a performance in the underlying audio track, there may be a separate agreement in which that person is compensated.

A cautionary tale about failing to secure proper releases: The producer of a video for an artist at a major record label used a picture of an old girlfriend from her Facebook profile in a spilt second of a still titled "Missing Persons" in a video featuring the artist singing about a romantic break-up. The ex-girlfriend noticed and was not pleased. She retained a lawyer who was able to negotiate a significant settlement.

Crowds and Audiences: If you are shooting in a public place, releases should be given to anyone wandering into the scene if anyone is are recognizable. If a person doesn't want to sign the release, you should avoid using that footage. If you are shooting in front of a live audience, you can use one or more signs at the entrance to the performance area informing the audience members that, by entering, they consent to appearing in the video. The sign (or signs) should be large enough and displayed in a place prominent enough that anyone entering will notice. However, if a person from the audience is featured, or especially if he or she appears on stage, a personal release should be signed.

Location Release: The location release at the end of this article is for a venue that agrees to let you shoot your video at the location without a fee. It is particularly useful if there is a sign or logo that people would recognize. The release will make it clear that no consideration was expected for the use of the location. Of course, sometimes a location, such as a restaurant or bar, will require a fee. In that case, the amount to be paid can be inserted in the release.

Public Places: Generally, if public venues and landmarks, such as the Empire State Building appear in the video, you do not need a release if the location is incidental to the action in the video. If, however, you are shooting in front of a well-known place, such as Nathan's hotdog restaurant in Coney Island, and its name appears prominently in the video, it would be wise to have the manager sign a location release.

4. Trademarks
The use of a trademark in a music video is generally protected by the First Amendment, but not always.

Likelihood of Confusion Test: The limited purpose of trademark protection set forth in the Lanham Trademark Act (15 U.S.C. § 1051 et. seq.) is to avoid confusion in the marketplace by allowing a trademark owner to prevent others from duping consumers into buying a product or using a service they mistakenly believe is sponsored by the trademark owner. Trademark law aims to protect trademark owners from a false perception that they are associated with or endorse a product or service. Generally, to assess whether a defendant has infringed upon a plaintiff's trademark, the courts apply a "likelihood of confusion" test that asks whether use of the plaintiff's trademark by the defendant is likely to cause confusion or mistake, or to deceive as to the affiliation, connection, or association of plaintiff's brand with defendant's product or service.

Applying these principles to music videos, the bottom line is that if a trademark is used in such a way that it is not likely to confuse a viewer into thinking that the brand sponsored the video, the producer may have a First Amendment right to use the mark (notwithstanding any licensing issues). The classic example is a rapper wearing a baseball cap or t-shirt. Just because the singer may be wearing a Yankees cap or Baltimore Orioles t-shirt doesn't mean that a reasonable person would think that the Yankees or Orioles sponsored or produced the video.

On the other hand, where a trademark is prominently featured, it may be reasonable to think that a brand is sponsoring the video. For instance, a number of brands are featured in the video for "Telephone" featuring Beyoncé and Lady Gaga. Yet in that case, the brands were actually sponsoring the video by paying for product placement. In fact, these days, many indie artists use brands to help pay for or at least defray the costs of their videos. However, if you have not received approval or received a sponsorship from a brand, it is important not to lead your viewers to believe that you have by drawing too much attention to the brand in your video.

Product Disparagement: This is also called product defamation, trade libel, or slander of goods; product disparagement is any statement about a brand that is false and likely to adversely affect its profits. Product disparagement includes negative statements about a product or service, false comparisons of competing consumer products or services, and statements harming the reputation of an artist.

When applying these principals to a music video, it is important to note that showing a brand's name or logo in a negative context could prompt a demand that the video be changed or not shown at all. Consider this real world example: A record label made a video in the early 1990s, when MTV was still playing videos, of a toy train running off the track and smashing into small models of people made of clay. During the video, close-ups of the artist as the conductor of the wayward train would appear. The video was lighthearted, and no one would think that the artist/conductor was actually running over real people. However, the name of the well-known U.S. railroad appeared on the toy train, and its representatives were less than amused. In fact, they sent a letter to MTV demanding that it stop playing the video. The label agreed to take the name off the toy train by blurring it, but the railroad still insisted that the video be banned because the color of the toy train--a particular shade of yellow--was the same color as its actual trains. The label reacted by changing the entire color of the video to sepia, which made the toy trains a different shade of yellow. Yet the railroad still had a problem because the cars were still yellow. The label defiantly re-released the video. However, the railroad company initiated a lawsuit against the label and was able to persuade a federal judge to permanently enjoin the further exhibition of the video on MTV and any other outlet. Later, the label settled the suit by paying damages to the railroad, in addition to agreeing to never use the video for any purpose again.

5. Artwork and Other Copyrighted Works
A best practice is to avoid using material protected by copyright. This will save you a lot of headaches, and possibly money. The case of Ringgold v. Black Entertainment Television is an important case in this regard. In the late 1990s, Faith Ringgold, a successful contemporary artist, sued BET for airing an episode of a television series called ROC in which a poster containing her artwork appeared. In the scene, at least a portion of the poster was shown a total of nine times. In some of those instances, the poster was at the center of the screen, although nothing in the dialogue, action, or camera work particularly called the viewer's attention to it. The nine sequences in which a portion of the poster was visible ranged in duration from a little more than one to four seconds. The aggregate duration of all nine sequences was approximately 27 seconds.

The case was decided by a federal appeals court in New York. The court found BET liable, rejecting the de minimis defense. As already noted in the section on "Cover Videos" above, if the amount of a work copied is so trivial as to fall below the quantitative threshold of substantial similarity, the copying is de minimis, and does not constitute copyright infringement. However, the court found that in addition to its appearance in the scene, there was also a qualitative connection between the poster and the show. The poster included a painting depicting a Sunday school picnic held by the Freedom Baptist Church in Atlanta, Georgia in 1909, and was intended to convey "aspects of the African-American experience in the early 1900s." ROC was a television sitcom series about a middle-class African-American family living in Baltimore, and the scene in question was of a gathering in a church hall with a minister.

In contrast to Ringgold, the case of Sandoval vs. New Line Cinema Corp stands for the proposition that use of copyrighted artwork in the background of a scene may be de minimis.

In Sandoval, the same court that decided the Ringgold case, found that the use of the plaintiff's copyrighted photographs in the motion picture "Seven" was de minimis and therefore not actionable. The photographs appeared in the film for a total of 35.6 seconds, but they were always in the background and never in focus. The court found that the "photographs as used in the movie [were] not displayed with sufficient detail for the average lay observer to identify even the subject matter of the photographs, much less the style used in creating them." The court distinguished the facts from Ringgold because there was no substantive connection between the appearance of the photos and the subject matter of the scene.  


The agreement below contemplates that an artist is hiring a production company to produce a promotional video. The same form of agreement may be used by a record company. An artist may consider forming a corporate entity (i.e., C corporation, Subchapter S or LLC) in order to avoid any personal liability in regard to any agreement including a video production agreement. In addition, an artist would be wise to consult with an accountant or attorney about forming an LLC or S corporation for tax purposes including eligibility to deduct video expenses from his or her personal income.

This form has been created for informational purposes only and does not constitute legal advice. You should consult an attorney before making any such legal agreements.


This agreement ("Agreement"), effective as of _____, 2016, is between __________ ("Artist") with an address of __________________, and _____________ ("Producer"), with an address at _____________________________.


WHEREAS, Producer has recognized expertise in video production; and

WHEREAS, Artist wishes to engage Producer to record a music video featuring Artist performing a song titled "_____________" (the "Video").

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties hereto agree as follows:


1.1. Producer shall provide Artist with the video recording and production services (hereinafter "Production Services") described within this Agreement.

1.2. Principal photography shall begin on ____________, 2016. Producer shall make Delivery, as defined herein, of the Video to Artist no later than _________, 2016. "Delivery" shall consist of delivery of (i) a fully edited sound synchronized video master, and (ii) all other recorded elements created during production, including but not limited to all audio tracks, video footage and outtakes. Delivery will not be deemed to have occurred until Artist accepts the Video as suitable for commercial exploitation.

1.3. Producer shall provide the Production Services to Artist promptly with the degree of skill, attention and due care that is standard practice within the professional Production Services industry.

1.4. Producer and Artist agree that the budget attached in Schedule A shall represent 100% of the funds required to produce the Video (hereinafter "Budget"). This amount represents the Producer's total anticipated costs and profit.

The Budget should include all costs for producing the video including producer and director fees as well as post production editing costs. For examples of music video budgets ranging from "shoestring" to "commercial/studio" budgets, see

1.5. If the Producer hires a director (hereinafter "Director"), the Director shall be an employee of the Producer for purposes of the production and Delivery of the Video.

1.6. All employees and representatives of Producer providing the Production Services hereunder to Artist during the Term of this Agreement shall be deemed for all purposes (including all compensation, taxes and employee benefits) to be employees or representatives solely of Producer, and not to be employees or representatives of Artist or to be independent contractors of Artist.

1.7. The Video shall depict content to be included in a treatment or script to be approved by Artist prior to principal photography.


This clause transfers all rights to the person (or company as the case may be) commissioning the Video.

2.1. Production Services provided by the Producer and any other person providing such Services shall be deemed to be provided on a "work made for hire" basis as that term is defined under the U.S. copyright law. The Video and all other materials created or contributed by the Producer including all footage, outtakes and audio tracks (the "Materials"), shall be the sole property of Artist throughout the universe, free from any claims whatsoever by Producer; and Artist shall have the exclusive right to register the copyright(s) in such Materials in her name as the owner and author thereof and to secure any and all renewals and extensions of such copyright(s).

2.2. Without limiting the generality of the foregoing, Artist and any person authorized by Artist shall have the unlimited exclusive right, throughout the universe, to manufacture or create copies of the Video or any other Materials by any method now or hereafter known, or any work derived from the Video or the Materials and to sell, market, transfer or otherwise deal in same under any trademarks, trade names and labels, or to refrain from such manufacture, sale and dealing.

2.3 Artist or any Person authorized by Artist shall have the right throughout the universe, and may grant to others the right, to reproduce, print, publish, or disseminate in any medium the name, portraits, pictures, likenesses and biographical material concerning Producer and Director any other person providing Production Services, as news or information, or for the purposes of trade, or for advertising purposes, in connection with promotion marketing and sale of the Video. As used in this Agreement, "name" shall include, without limitation, any professional names.


3.1. The Parties agree that the Effective Date of this Agreement shall be as set forth at the beginning of this Agreement (hereinafter "Effective Date"). The parties acknowledge that the total amount of the attached Budget is___________ Dollars ($_____). Within five (5) days of the Effective Date, Artist shall pay Producer 50% of the Budget, that is, _________ Dollars ($_____). The second payment of 25%, that is, _________ Dollars ($_____), shall be due upon completion of principal photography. The third and last 25% payment of ________ Dollars ($_____) shall be due upon Delivery of the Video and other Materials to Artist.

3.2. Overages. In regard to overages to the Budget, Producer shall not charge Artist any monies in addition to the approved Budget without Artist's prior written approval.


Notices, reports, accountings or other communication which Producer or Artist may require or desire to send to the other must be delivered either by:

Certified mail, return receipt requested to the parties at the addresses first written above or other address to be designated by Producer or Artist as the case may be; or

Electronic mail at the following addresses:

(i) for Artist:
(ii) for Producer:


Producer may not assign this Agreement or any right or obligations under this Agreement. Artist may assign this Agreement or any of her rights or obligations hereunder to any person, firm, or corporation including a corporation in which Artist is a principal, provided that (i) Artist shall remain responsible for any payments required to be made under this Agreement, and (ii) the assignee has the necessary cash on hand to make any payments required under this Agreement.


6.1. Producer warrants and represents that he has the legal right to enter into this Agreement including the legal right to sign on behalf of the Director. Producer further warrants and represents that (a) all content contributed by the Producer shall be original and not interfere with or violate any rights of any third party; and (b) no content appearing in the Video, including artwork or photography, will interfere with or violate any rights of any third party.

6.2 Producer warrants and represents that he shall provide valid signed releases from any third party performing or appearing in the video, and that he shall, if legally required, secure valid signed location releases from any location appearing in the video. Acceptable forms of release are attached hereto as Schedule "A" and "B" respectively.

The attached releases may be used as Schedules A and B. Note that the releases allow the Producer to assign the rights secured in the releases to the Artist.

6.3. Producer and each of his representatives, employees, contractors, agents and representatives hereby release, indemnify and agree to hold harmless Artist and her agents and representatives from and against any and all losses and/or damages which arise out of the Production Services.


Artist may terminate this Agreement upon written notice in the event of a material breach by Producer, including late delivery of the Video, if such breach is not cured within __ days of notice thereof. If such breach is not cured within that time, Producer shall not be entitled to any additional payments and, upon notice by Artist, Producer shall refund to Artist any monies previously paid.


8.1. Governing Law. This Agreement shall be interpreted under the laws of the state of ________ without regard to its choice-of-law rules, and the parties shall submit to the exclusive jurisdiction of the courts of that state.

Since the Artist is the party paying money in this Agreement, the Artist should have the right to decide in which state any dispute arising from the Agreement should be litigated.

8.2. Relationship of Parties. Producer and Artist shall have the relationship of independent contractors. Nothing herein shall be construed to place Producer and Artist in the relationship of principal and agent, employer and employee, master and servant, partners, or joint venturers, and neither party shall, either expressly or by implication, have represented themselves as having any authority to make contracts in the name of, or binding on, each other, or to obligate the other in any manner.

8.3. Complete Agreement. Producer and Artist acknowledge that this Agreement represents the complete and exclusive statement of the agreement between the Producer and Artist with regard to the subject matter herein, and that it supersedes any proposal or prior agreement, whether oral or written, and any other communications between the Parties relating to the subject matter of this agreement.

8.4. Enforcement. If any provision of this Agreement shall be found invalid or unenforceable, then such provision shall not invalidate or in any way affect the enforceability of the remainder of this Agreement.






SS #____________________________

If the Producer is a production company or LLC ("Production Company"), the president or managing partner should sign the personal guarantee below:

In order to induce Artist to enter into this Agreement, I hereby agree and acknowledge that (a) I have read all of the terms and conditions set forth in this Agreement; and (b) I shall be personally bound by all the terms and conditions in this Agreement applying to the Production Company, and that I shall be personally liable for any breach of this Agreement by Production Company.


Print Name: _____________________
Position: ________________________


To ______________ ("Producer")

I understand that Producer is producing a video containing the performance of a song titled "_____________" (the "Video").

For good and valuable consideration, including my desire to appear in the Video, I irrevocably grant to Producer, his licensees and assigns the right to film, videotape, portray and photograph me, my likeness and my performance, and to record my voice and other sound effects, and the right to use them or any portion thereof, and my name and any biographical facts which may have been provided to Producer, in connection with the production of the Video and the advertising, promotion and publicity therefor, and all rights of every nature whatsoever in and to all films, video, portrayals, photographs, performances and recordings produced hereunder ("Material"), including without limitation all copyrights therein and renewals and extensions thereof, and the exclusive right to reproduce, exhibit, distribute and otherwise exploit the Material in whole or in part in perpetuity throughout the universe in all languages, in any and all versions (including digitized versions) and forms, and in any and all media now known or hereafter devised. Independently and apart from any consideration accruing to me hereunder, I hereby release Producer and Producer's authorized designees from, and covenant not to sue Producer and Producer's authorized designees for any claim or cause of action, whether known or unknown, for libel, slander, invasion of right of privacy, publicity or personality, or any other claim or cause of action, based upon or relating to the exercise of any of the rights referred to herein. I understand that nothing herein will require Producer or Producer's designees actually to produce or utilize any Material hereunder.

This grant is irrevocable so that Producer may proceed in reliance thereon. This instrument contains the entire understanding of the parties, may not be changed or terminated except by an instrument by Producer and me and will be construed in accordance with the laws of the State of ______, provided that the courts of the state of __________ shall have exclusive jurisdiction to resolve any disputes arising from this Release.


Authorized Signature

[Print name]


Property Owner: [Name]
Address: ___________________________ _
Phone: ____________________________ Fax: _______________________________
Email: _____________________________ Contact: ____________________________

Producer: [Name]
Address: _____________________________
Phone: _____________________________ Fax: ______________________________
Email: ______________________________ Contact: _____________________________

Your signature in the space provided below as owner or agent, will confirm the following agreement ("Agreement") between you as the Property Owner ("Owner") and Producer regarding filming of your property (the "Premises") described below in connection with a video containing the performance of a song titled "_____________" (the "Video").

1. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Owner hereby grants to Producer the right during the Term (as defined below) hereof to photograph and record at, the Premises (including, without limitation, the right to photograph and record both the real and personal property, all of the signs, displays, exteriors, and the like appearing therein, if any) for the period specified below.

2. As used herein, the term "Premises" refers to the premises located at: __________________________________________________________________

3. The term hereof (the "Term") shall commence from __________am/pm to ____________ am/pm on or about ____________________________ and shall continue until _________________________, unless modified by the parties. The Term shall be subject to modification due to changes in production schedules. Owner agrees to consult closely with Producer's representatives to ensure scheduling is arranged which will allow for completion of the scenes planned to be included in the Video using the Premises. Owner acknowledges that Producer is incurring significant expenses in reliance on Owner's cooperation and participation in connection with this Agreement and that Owner may be held responsible for the actual and/or consequential damages incurred by any breach of this agreement.

4. Owner represents and warrants that: (a) Owner has the right and authority to make and enter into this Agreement and to grant Producer the rights set forth herein, without obtaining any consents or permissions from any third party; and (b) Owner shall take no action, nor allow or authorize any third party to take any action which might interfere with Producer's authorized use of the Premises. Owner hereby waives all rights of privacy or other rights of a similar nature with respect to Producer's use of the Premises. Owner shall indemnify Producer, his licensees and assigns, and their parent, affiliate, and related entities, shareholders, directors, officers and employees from and against any breach or claim of breach by Owner of any representation, warranty, agreement or obligation herein.

5. Producer shall leave the Property in as good condition as when received, reasonable wear and tear to be expected. Producer shall remove all of his material, equipment and personnel from the Property.

6. Producer agrees to indemnify and hold Owner harmless from damage to the Premises and property located thereon and for personal injury occurring on the Premises during the Term and from any liability and loss which Owner may incur by reason of any accidents, injuries, death or other damage to the Premises directly caused by Producer's negligence in connection with his use of the Premises. In connection therewith Owner must submit to Producer, within three (3) days after Producer vacates the Premises, a detailed list of any property damage or personal injuries which Owner feels Producer is responsible, failing which Owner will be deemed to have acknowledged that there is no property damage or personal injuries for which Producer is responsible. Owner shall permit Producer's representatives to inspect any damaged property and to verify any claims for damages by Owner.

7. Nothing shall obligate Producer to photograph, to use such photography, or to otherwise use the Premises. Producer shall have the right to photograph, record and depict the Premises and/or any part or parts thereof, accurately or otherwise, as Producer may choose, using and/or reproducing the actual name, signs, logos, trademarks and other identifying features thereof and/or without regard to the actual appearance or name of the Premises or any part or parts thereof, in connection with the Video.

8. a. Owner acknowledges that, as between Owner and Producer, Producer is the copyright owner of the photography and/or recordings of the Premises, and that Producer, his successors and assigns have the irrevocable and perpetual right, throughout the universe, in any matter and in any media to use and exploit the films, photographs, and recordings made of or on the Premises in such manner and to such extent as Producer desires in his sole discretion without payment of additional compensation to Owner. Producer and his licensees, assigns and successors shall be the sole and exclusive owner of all rights of whatever nature, including all copyrights, in and to all films, programs, products (including interactive and multimedia products), photographs, and recordings made on or of the Premises, and in the advertising and publicity thereof, in perpetuity throughout the universe.

b. The Owner hereby gives to Producer, his assigns, agents, licensees, affiliates, clients, principals, and representatives the absolute right to use any names associated with the Property in the Video, or to promote the Video, all without inspection or further consent or approval by the Owner.

9. Producer may assign or transfer this Agreement or all or any part of his rights hereunder to any person, film or corporation; Owner agrees that Owner shall not have the right to assign or transfer this Agreement.

10. From the date of execution of this Agreement, through and including the date this Agreement may be terminated, Producer shall keep or cause to be kept in force the following insurance:
Commercial General Liability Insurance, including public liability, contractual liability, bodily injury, and property damage insurance, each policy with a combined single limit of bodily injury and property damage liability of $1,000,000.00 per accident or occurrence. Owner shall be an additional insured. The policies shall provide that they cannot be canceled or reduced without thirty (30) days prior written notice to Owner.

All insurance policies required hereunder shall be with companies having at least a Best A+10 rating as of the date of issuance of the policy, and shall contain language to the extent obtainable, to the effect that (i) any loss shall be payable notwithstanding any act or negligence of Owner that might otherwise result in a forfeiture of the insurance, (ii) that the insurer waives the right to subrogation against Owner and against Owner's agents and representatives, including Owner's insurers, (iii) that the policies are primary and non-contributing with any insurance that may be carried by Owner. Producer shall furnish Owner with certificates evidencing the insurance on or before ______________________. All certificates of insurance required herein, and exclusions from coverage in all policies, and the actual liability policies are subject to the approval of Owner's counsel.

Insurance should be obtained if shooting is to occur inside a location such as a store or someone's house. The cost of the insurance should be included in the Budget for the Video.

11. This Agreement constitutes a binding agreement and is the entire agreement among Producer and Owner and supersedes all prior negotiations and communications, whether written or oral; representations and warranties, whether written or oral; and documents and writings, whether signed or unsigned, with respect to the subject matter hereof.


Owner or Owner Representative
Signature: _________________________
Print Name: _________________________

Producer or Producer Representative
Signature: _________________________
Print Name: _________________________

March 11, 2016

Peter Paul Biro v. Conde Nast

A limited-purpose public figure is required to allege sufficient facts to assert the existence of malice in a defamation claim.

By Pia Katerina Tempongko

In this day and age, the line between public figures and ordinary people seems to get blurry. The proliferation of different platforms turn certain people from private individuals into television celebrities. This new kind of celebrity status has been made famous by reality shows, social media presence, and blogosphere notoriety. Current events are instantaneously relayed to the masses through TV networks, radio, social media, SMS/MMS exchange, and the like. Of course, the yin has to balance the yang. The good that comes with being famous, however, comes with the vulnerability to outside attacks.

Peter Paul Biro, the plaintiff in this case, was the subject of an article that was printed in the The New Yorker magazine, which is published by the defendant. Biro's business is art restoration and authentication, and he well known in the art world; he has developed scientific approaches to authenticating art works through fingerprint analysis. Biro alleges that the article was false and defamatory as it alludes to his practice, methods and character being questionable. He claims that article addresses:

art authentication being subjective more than objective;
Biro's attempts to render objective what has historically been subjective;
mentions several lawsuits against Biro with respect to his work;
the author's emphasis on the suspicious aspects of Biro's background; and
Biro's denial or his attempt to explain when confronted by the author with respect to these lawsuits and various allegations.

As there were so many alleged defamatory statements within the 16,000 word article, the court had to classify and address which were actionable versus non-actionable. It granted the defendant's motion to dismiss on the non-actionable statements, and denied the motion regarding those that were actionable. The court ruled that statements that are substantially true and based on facts are not defamatory statements, and therefore not actionable, in a defamation suit. Statements of pure opinion are also non-actionable. However, a statement of opinion that is based on undisclosed facts can be potentially actionable because it carries with it an implicit statement of facts. On the other hand, a statement that supplies additional affirmative evidence suggesting that the person stating it intends or endorses the defamatory inference is an actionable statement. Additionally, when an author fully sets forth the factual basis for a particular view, the author's conclusion constitutes non-actionable opinion. The court granted in part and denied in part the defendant's motion to dismiss. (Biro v. Conde Nast, 883 F.Supp.2d 441 (2012))

Biro appealed the case, and the Second Circuit discussed 2 main points: 1) Whether Biro is a limited-purpose public figure; and 2) what is required for a defamation claimed by a limited-purpose public figure to stand. The Court ruled that Biro was a limited-purpose public figure. It ruled that: 1) Biro successfully invited public attention to his views in an effort to influence others to the incident that is the subject of litigation by inviting public scrutiny of his forensic methods to authenticate art by participating in several documentaries; 2) Biro voluntarily injected himself into a public controversy related to the subject of litigation by agreeing to frequent interviews; 3) Biro assumed a position of prominence in the public controversy by seeking and obtaining clients and fame in the process; and 4) Biro maintained regular and continuing access to the media by resorting to the press to defend his position on various controversies. ( Lerman v. Flynt Distrib. Co., 745 F.2d 123, 136-37 (2nd Cir. 1984))

The Court also ruled that a plaintiff who is a limited-purpose public figure must plausibly allege actual malice in a defamation claim. The plaintiff must allege sufficient facts that the defendant acted with actual malice when it comes to the alleged defamatory remarks.

Although celebrities and public figures accept the reality that personal attacks are part of public life; sometimes, an ordinary person's actions make him or her an unwilling celebrity. This in turn results in the person's loss of some rights that are only afforded to private citizens.

March 30, 2016

Biro v Conde Nast (continued...)

By Richard A. Altman

This blog will provide some additional information regarding Mr. Biro's ongoing defamation case. The description of the case in Ms. Tempongko's post ( is fair and accurate, but I would like to add that Mr. Biro filed a petition for a writ of certiorari in the U.S. Supreme Court on March 4, 2016. certpetitionwcover.pdf Responses are due on April 7th. The petition makes three principal arguments for Supreme Court review; they are summarized here briefly.

1. There are irreconcilable conflicts in Federal and State case law over the definition of "public figure".

In the landmark cases of New York Times Co. v. Sullivan, 376 U.S. 254 (1964) and Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967), the Supreme Court created significant First Amendment protections for criticism of public officials and public figures respectively, by holding that such persons had to prove constitutional malice by clear and convincing evidence, in order to prevail on a defamation claim.
In the 1970s, the Court decided four public figure defamation cases, Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), Time, Inc. v. Firestone, 424 U.S. 448 (1976); Wolston v. Reader's Digest Assn., Inc., 443 U.S. 157 (1979); and Hutchinson v. Proxmire, 443 U.S. 111 (1979). In each and every case, the Court ruled that, despite each plaintiff's extensive involvement in a controversy which had attracted significant public attention, he or she was not a public figure.

The Gertz case did not actually define the term. It is unclear whether the Gertz Court purported to define the term "public figure", or was only explaining why public figures are treated differently from others. A careful reading of the majority opinion strongly suggests the latter. (1 Sack, Sack on Defamation, 5:3.1 at 5-19 to 20 (4th ed. 2010, Rel. #4, 4/14)). Judge Sack said that, "[t]he lack of a comprehensive definition or description of the term "public figure", in the Supreme Court and the divergent case law in state and lower federal courts make the determination of a defamation plaintiff's status an uncertain process, differing from state to state and court to court." (Sack, supra, 5:3.6 at 5-45.)

The Supreme Court's reluctance to find public figure status in the seminal case law has been overlooked by the many courts which, since then, have been far more willing to do so. As one District Court observed about Gertz, "[i]n addition to injecting himself voluntarily into this area of public controversy, Gertz had achieved some public prominence in his own right. He had served as an officer of the National Lawyers Guild, and had considerable stature as a lawyer, author, lecturer, and participant in matters of public import. Perhaps if attorney Gertz was not a public figure, nobody is." (Hotchner v. Castillo Puche, 404 F. Supp. 1041, 1044 (S.D.N.Y.1975), rev'd on other grds., 551 F.2d 910 (2d Cir.1977), cert.den. 434 U.S. 834 (1977)(citation and quotation marks omitted)).

In the 47 years since, the Supreme Court has not elaborated further on the public figure question. This lack of elaboration since 1979 has led to irreconcilable conflicts among the cases in both Circuit and State courts. Mr. Biro's petition argues that the Supreme Court should set out a national and uniform definition of "public figure", one which considers not only the original purpose of the term, but also the last two decades' dramatically changed media landscape, including the Internet, social media, and the escalating threats to an individual's reputation posed by the new world of blogs, tweets and viral Internet postings, and that the Court should strike an appropriate balance between the First Amendment and a person's right to recover for unjustified reputation damage.

This issue has received much commentary. (See, e.g, Sanders & Miller, Revitalizing Rosenbloom: the Matter of Public Concern Standard in the Age of the Internet, 12 First Amend. L. Rev. 529 (2014); Kelley, Tortious Tweets: A Practical Guide to Applying Traditional Defamation Law to Twibel Claims, 73 La.L.Rev. 559 (2013); Lat & Shemtob, Information Privacy: Public Figurehood in the Digital Age, 9 J. of Telecomm. & High Tech. L. 403 (2011).)

Depending on the Circuit or State where a claim is brought, there can be either a three-part, four-part or five-part test for determining public-figure status. Some courts (like the Second Circuit) consider whether a plaintiff has regular and continuing access to the media. (Lerman v. Flynt Distributing Co., 745 F.2d 123, 137 (2d Cir.1984)); others do not. Some courts examine whether the statements complained of are germane to the public controversy; the Second Circuit does not. Some courts examine whether the statements relate to matters of public concern; others do not.

In Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749, 757 758 (1985), the Supreme Court said that it was necessary to "balance the State's interest in compensating private individuals for injury to their reputation against the First Amendment interest in protecting this type of expression" and that "the individual's right to the protection of his own good name reflects no more than our basic concept of the essential dignity and worth of every human being a concept at the root of any decent system of ordered liberty." Moreover, said the Court, "speech on matters of purely private concern is of less First Amendment concern. As a number of state courts, including the court below, have recognized, the role of the Constitution in regulating state libel law is far more limited when the concerns that activated New York Times and Gertz are absent..." The Biro case squarely presents this issue.

Given the vagueness of the test, a test of constitutional dimension, and the profound consequences for a defamation plaintiff's burden of proof and likelihood of success, these disparities are not acceptable. (See Gertz, supra, 418 U.S. at 342 ("Plainly many deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier of the New York Times test.")). Given those consequences, it is unacceptable for a plaintiff, particularly one like Mr. Biro, who the district court found had been potentially libeled, to be stopped from trying to surmount that barrier.

Even when a plaintiff is a limited-purpose public figure because of involvement in a public controversy, the First Amendment protections afforded a publisher should not extend to statements which are not germane to the controversy. Were it otherwise, a public figure would be essentially libel-proof. Involvement in a public controversy should not create an open license to defame, allowing publication of false and irrelevant statements about a public figure's personal life or history.

2. It is practically impossible for a public figure to plead malice successfully against a media defendant in Federal courts, but it is easily done in New York State courts. The conflict is irreconcilable.

Prior to the Biro case, the rule in the Second Circuit was that "resolution of the...actual malice inquir[y] typically requires discovery," (Church of Scientology Int'l v. Behar, 238 F.3d 168, 173 (2d Cir.2001); Boyd v. Nationwide Mut. Ins. Co., 208 F.3d 406 (2d Cir.2000).) With a media defendant, evidence of malice is by definition usually deeply embedded in the editorial process and is almost always unknown a priori to the plaintiff. Moreover, an allegation of malice is not a bare legal conclusion as to an element of a cause of action. To say that someone acted with malice is not a legal conclusion at all; it is rather a purely factual assertion about that person's subjective state of mind, i.e. that someone uttered a statement with knowledge that it was false.

New York State courts have approached this problem very differently from the Federal courts. New York cases are uniform and long-standing in requiring that a public figure must prove actual malice in order to prevail at trial (or defeat summary judgment). Yet the cases also recognize that a public figure's ability to plead facts demonstrating malice in a sworn complaint is limited, and can seldom be determined in the pre-discovery context of a motion to dismiss. In New York, therefore, once a plaintiff can allege the publication of statements which are susceptible of a defamatory connotation, he or she is entitled to proceed to discovery.

In this case, the district court had found that the New Yorker article contained four statements which were susceptible of a defamatory connotation, and were not protected opinion. Once that threshold determination had been made, Mr. Biro should have been afforded discovery rights. Whether he could eventually prove malice is not the issue; rather, he should have been given the opportunity to do so.

3. The difference between the Federal and State approaches is substantive, not procedural, and thus violates the Rules Enabling Act and principles of Erie federalism.

The third argument raised by the petition is that the disparity in outcomes between State and Federal courts violates the Rules Enabling Act and Erie federalism, which essentially say that the Federal Rules of Civil Procedure are to be construed so that the outcome of a diversity case, governed by state common-law principles, is the same in either court.

The Rules Enabling Act, 28 U.S.C. 2072(b), provides that the federal "rules shall not abridge, enlarge or modify any substantive right." An interpretation of a rule of procedure which bars a claim in Federal court at the pleading stage, but would permit it to proceed in State court amounts to the abridgment of a substantive right. It violates "the Erie prohibition of court created rules that displace state law." (Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 412 n. 9 (2010)), and "the twin aims of the Erie rule: discouragement of forum shopping and avoidance of inequitable administration of the laws." (Hanna v. Plumer, supra, 380 U.S. at 468 (footnote omitted).)

In this case, the long-standing rule allowing defamation plaintiffs in New York State courts to plead malice generally, without extensive factual detail, defines the scope of their right to proceed to adjudicate their claims. Thus it "is procedural in the ordinary use of the term but is so intertwined with a state right or remedy that it functions to define the scope of the state created right." (Id.) Therefore, Rule 9(b), which allows malice to pleaded generally, cannot be interpreted so as to displace that state rule.

The Second Circuit's refusal to follow New York law, and its unwarranted expansion of the minimal pleading requirement of Rule 9(b) so as to dismiss a state common-law defamation claim, violated the Rules Enabling Act and principles of Erie federalism. The Second Circuit's decisions conflict with more than a century of uniform holdings by all levels of New York State courts.

Whether the Supreme Court will grant the petition is unknown and in any event unlikely, as is true with any petition. Yet the issues the case raises are important ones.

April 22, 2016

Holmes v. Love

By Pia Katerina Tempongko

According to the company website, Twitter was created in March 2006 by Jack Dorsey, Evan Williams, Biz Stone and Noah Glass, and launched in July 2006. As of December 31, 2015, the social media platform had more than 320 million users, with one billion unique visits monthly to sites with embedded tweets. Twitter has been used for different purposes -- crowdsourcing, business promotion, keeping up with the news, favorite celebrities, brands, restaurants, microblogging, maintaining connections with peers, and perhaps the most common use of it all -- Twitter serves as an avenue for anyone who uses it to exercise his or her right to freedom of speech. As Twitter's website states: "Tell your stories here."

Courtney Love Cobain, an American actress, singer, and songwriter, has been a household name for the past three decades. She is the lead singer of the rock band Hole and also the widow of Kurt Cobain, who was the lead singer of the rock band Nirvana. Her mainstream popularity can be attributed to her success in the worlds of music, acting, fashion, and lately, her Twitter presence. Like many celebrities, Cobain tweets to share her thoughts, one of which (famously dubbed as "Twibel") is the subject of this case.

After her husband's death, Cobain believed that various persons defrauded her, her daughter and her husband's estate that was worth millions of dollars. Cobain hired plaintiff Rhonda J. Holmes in 2008 to represent her and investigate her claims. Holmes worked on Cobain's claims from December 2008 through May 2009, and helped Cobain draft a press release that was published in the New York Post on April 7, 2009. The article quoted Holmes as stating she had "been able to "track down" $30 million but that more was missing and that they will be filing civil cases within the next 30 days." Cobain sent 80 boxes of documents to Holmes to help in preparing the complaint. Based on the press release and the documents sent, Cobain expected Holmes to file a civil case by May 7, 2009. However, Holmes did not file a complaint, and later told Cobain that her computer was hacked. Holmes also stated the following: that Cobain's former counsel threatened her, $140,000 was stolen from Holmes's bank account, Holmes had been a victim of credit card fraud, and her phone was tapped. Holmes claimed that these incidents occurred because of the press release. Holmes emailed Cobain on May 8, 2009, stating she was still representing her client. However, that was the last time Cobain heard from Holmes, and no complaint was ever filed on Cobain's behalf.

By June 2010, more than a year after the New York Post press release, Cobain assumed that Holmes had decided not to continue representing her, and tried to determine if Holmes "vanished" or was bought off. In what Cobain thought to be a private Twitter conversation, she was asked by two users if she thought that her lawyer was bought off. She replied, "I was f*****g devastated when Rhonda J. Holmes, Esquire, of San Diego was bought off @FairNewsSpears perhaps you can get a quote." She removed the tweet after five to seven minutes.

Holmes filed a case of libel per se because of this tweet, and the jury returned a special verdict stating that the Twitter statement was false and had a natural tendency to injure Holmes's profession. However, the jury did not believe that Holmes proved by clear and convincing evidence that Cobain knew the statement was false or had serious doubts about the truth of the statement.

In the case of New York times Co. v. Sullivan (1964) 376 U.S. 254, the Court ruled that actual malice is required to prevail on a liber per se claim. There has to be a clear and convincing proof of a knowing falsehood or of reckless disregard of the truth. Recovery by public officials in defamation actions is constitutionally barred unless evidence is produced of either deliberate falsification or reckless publication despite the publisher's awareness of probable falsity. The crucial focus of actual malice is the defendant's attitude or state of mind toward the allegedly libelous material published. (McCoy v. Hearst Corp. (1986) 42 Cal.3d 835, 860). In this case, the jury found that Holmes failed to prove actual malice and failed to establish by clear and convincing evidence that Cobain knew the tweet was false or had serious doubts about the truth of her statement. The jury came to this conclusion by examining the surrounding circumstance that led to the Twitter statement. Although Cobain's statement was injurious to Holmes, the jury did not find malice, and the Court of Appeals affirmed.

Public figures benefit from using Twitter, but accessibility and freedom of speech make celebrities easy targets, as the spotlight is on them 24/7 and the standard in defamation cases concerning public figures is high.

Holmes v. Love (

About Privacy and Media

This page contains an archive of all entries posted to The Entertainment, Arts and Sports Law Blog in the Privacy and Media category. They are listed from oldest to newest.

Music and Recording Industry is the previous category.

Publicity is the next category.

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