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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
strell@sunshinesachs.com

STATEMENT BY SHEPARD FAIREY ON ASSOCIATED PRESS FAIR USE CASE
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 http://www.supremecourt.gov/opinions/10pdf/08-1448.pdf.

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 http://bits.blogs.nytimes.com/2012/02/15/google-and-mobile-apps-take-data-books-without-permission/) 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 http://www.reuters.com/article/2012/02/15/us-apple-privacy-idUSTRE81E1W520120215)

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 http://appadvice.com/appnn/2012/02/another-ios-privacy-issue-unfolding-this-time-concerning-your-photos)

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 http://www.newsdaily.com/stories/tre8230wz-us-apple-google-ftc/)

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." (http://epic.org/privacy/consumer/Commercial_Privacy_Bill_of_Rights_Text.pdf)

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: http://epic.org/privacy/consumer/Commercial_Privacy_Bill_of_Rights_Text.pdf

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