Entertainment Law

  1. Types of Defamation
    • 1. Libel (written defamation)
    • 2. Slander (spoken defamation)
    • 3. Business/product disparagement
  2. Defamation Tort Elements [Tex.]
    • P must prove D:
    • 1. Published or spoke
    • 2. A false statements
    • 3. That was defamatory
    • 4. Concerning the P;
    • 5. While acting w/ actual malice or negligence; and
    • 6. Damages were incurred

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

    NB: Actual malice needed if person was a public figure, negligence only needed if private figure
  3. What is "Publication" in regard to defamation?
    When one person (other than writer and defamee) sees or hears the material and that person understands the statement to be defamatory

    Presumption to Mass Media: Mass media releasing something is publication
  4. Vendor and publisher liability for publication of defamatory material
    Only liable if they knew or should have known of defamation
  5. Truth as a defense to defamation
    Truth is an absolute defense to defamation
  6. Substantial truth and defamation
    What's the "gist"? Does the proven truth leave a diff. impression of the P to the jury than the impression created by defamatory statement?
  7. Expressions of opinion and defamation
    • Protected under the 1st Amendment
    • What is opinion? Look at:
    • 1. Verifiability;
    • 2. Precision of language (phony, cheat, crook is imprecise)
    • 3. Context (including cautionary language
    • 4. Type of writing or speech

    NB: Opinions cannot imply false statemetns of objective fact
  8. What is defamatory?
    Tends to harm the rep. of another so as to lower in the estimation of the community or deter 3d persons from assoc. or dealing w/ him, or it tends to expose him to public hatred, contempt, or ridicule.
  9. Defamation per se
    • Accusion someone of:
    • Crime, loathsome disease, professional misconduct, sexual misconduct, racism, financial ruin

    NB: Presumption of damaged rep––P can recover w/o proof of injury
  10. Defenses to Injury to Reputation
    • 1. Reputation not capable of being harmed
    • 2. Cannot isolate words or take out of context
    • 3. Parody/satire is protected
  11. Identification requirement of defamation
    • Others must reasonably understand that P is the one referred to
    • Can be ID'd by:
    • 1. Name
    • 2. Nickname
    • 3. Photo
    • 4. References that would only ID one person

    NB: Can't shield from defamation by couching something as fiction––fictional chars closely resembling real people may lead to defamation
  12. Group Identification and defamation
    Usu. <3 or 4 people in a group

    NB: A legal entity can sue as a whole
  13. Defamation of friends and family
    No defamation when someone says something about your friends or family
  14. Deceased people and defamation
    [Tex.]––"[Not allowed to] blacken the rep. of the dead."
  15. Actual Malice in defamation
    • What is the speaker's attitude to the truth?
    • Established by:
    • 1. Knowledge of falsity; or (entertained doubts, but published anyway)
    • 2. Reckless disregard for truth
  16. Standard of proof for actual malice
    Clear and convincing
  17. Proving negligence in defamation
    • What would an ordinary person under similar circumstances do?
    • Determine by: Jury or judge finds how a resonable reporter/writer would have acted––If D was below that: Negligent.
  18. Public officials and defamation
    • 1. Any elected official; OR
    • 2. Other gov't official if:
    • - he has a substantial responsibility for or control over gov't conduct;
    • - public has an interset in qualifications and performance of person beyond that for all gov't employees; and
    • - sotry is about the official's job resp. or performance
  19. Categories of public figures in re: defamation
    • 1. General-purpose
    • 2. Limited-purpose
  20. General purpose public figures factors
    Name is a household word

    NB: Judge from community in which story was published (e.g. Ron Roberts in Lubbock vs. Country)
  21. Limited purpose public figure factors
    • 1. Controversy at issue is "public" (issue's resolution will have widespread effect)
    • 2. P has more than a trivial or tangential role in controversy
    • 3. Defamation is germane to P's participation in controversy
    • 4. Controversy must exist before publication
    • 5. P must voluntarily participate in controversy
    • 6. P must by actively seeking to influence and have access to comm. channels to do so


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

    • Public issue
    • Important (not trivial/tangential person)
    • Germane to the controversy
  22. Damages for Defamation, Generally
    Hurt feelings, mental suffering, or anguish (w/in jury's discretion)

    NB: If defamation per se, can recover w/o proof of damages
  23. Damages for Defamation, Special
    Loss of employment, lost income, loss of earning capacity

    NB: Must be supported by ev. to get spec. dmgs
  24. Damages for Defamation, Punitive
    D acted w/ actual malice, fraud, or gross neg.
  25. Absolute privilege against defamation
    • Can't defame when:
    • - In a legis. or judicial forum
    • - Official comms or statements by public officials

    Other absolute privileges: Comms between employer/employee, report of credit rating, and personnel recomendations
  26. Qualified privilege to defamation
    Generally, completely, fairly, and accurately reporting what happens at a gov't or judicial proceeding is privileged

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

    • NB: The publisher is acting as the eyes and ears of non-attendees
    • NB: A person incidental to a story of public interest is not barred by qualified priv.
  27. Retraction statutes in re: defamation
    Not required in Tex.

    Allows D opportunity to retract story before suit (retraction must be as prominent as alleged defamation)
  28. SLAPP suits
    Strategic Lawsuits Against Public Participation

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

    Atty fees awardable
  29. Privacy Torts
    • 1. Intrusion upon seclusion
    • 2. Publication of private info
    • 3. Placing an individual in a false light
    • 4. Appropriation of name or likeness w/o permission
  30. Privacy rights of a company
  31. State laws in re: privacy
    Vary from state to state
  32. False Light tort
    • Not recognized in Tex.
    • Elements:
    • 1. The false light in which the indiv. was placed would be offenseive to a resonable person; and
    • 2. The publisherwas at fault when the publication was made

    NB: Very similar to defamation law
  33. Public disclosure of private facts elements
    • 1. Publicity was given
    • 2. To a matter concerning an indiv.'s private life;
    • 3. Not of legit. public concern; and
    • 4. The publication would be highly offensive to a reasonable person

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

    NB: Focuses on what was published, not how it was obtained
  34. Public disclosure of private facts––Publicity element notes
    • - Must be a public disclosure of a private fact
    • - Different from "publication" in defamation (must be seen by the public at large; not just 1 other person)

    Presumption: Usu. presumed in cases of newspapers, mags, TV, and radio
  35. Public disclosure of private facts––Private facts elements notes
    • - Material must actually be private
    • - No liability for public domain matters (e.g., anything that happened in public view)
  36. Public disclosure of private facts––Legit public concern element notes
    • - Can't be of legit public concern (e.g., murders, arrest, police raids, suicide, marriages, divorces, accidents, rare diseases, incest, rape)
    • - Line crossed when publicity is no longer important info giving but is morbidly sensational prying for its own sake

    NB: Public importance can trump offensiveness
  37. Public disclosure of private facts––Offensiveness element
    Would a reasonable person be offended by the publication of the material?
  38. Public disclosure of private facts––Newsworthiness
    • Not needed in Texas!
    • Test:
    • 1. Fame of subject;
    • 2. Social val. of story
    • 3. Depth of intrusion

    Sliding scale: soc. val hig = depth of intrusion matters less and vise-versa
  39. Public disclosure of private facts––Nexus
    There must be a logical nexus between the complaining indiv. and the matter of public interest
  40. Intrusion upon seclusion
    Can't intrude on private affairs of others (physically or otherwise) if the intrusion would be offensive to a reasonable person

    NB: Doesn't focus on what is published, but how the info was obtained
  41. Intrusion upon seclusion––Intrusion element
    Can be actual or not (e.g. telephoto lens)
  42. Intrusion upon seclusion––Private element
    Thing or place must ordinarily be private (a reasonable expectation of privacy)

    NB: No protection for public places
  43. Intrusion upon seclusion––Intrusion element
    Must be highly offensive to a reasonable person
  44. Intrusion upon seclusion––Employees
    Limited but legit expectation that private convos won't be intruded upon

    E.g., Sanders––reporter videotaped "telepsychic"
  45. Appropriation elements
    Can't take someone's ID, name, or likeness for commercial or trade purposes w/o consent

    • NB: Encompasses right to priv. and pub.
    • NB: Protects a property right! Can be passed to heirs and assignees!
  46. Appropriation––Right to Pub. Factors
    • 1. Knowing use of person'sname
    • 2. On products, merch, or goods,
    • 3. W/o prior consent
  47. Appropriation––Likeness
    Anything that would suggest to onlookers that P is ID'd

    • NB: Only recognizable likeness is needed; no Id-able facial recognition needed
    • NB: Celebrity impersonators are on thin ice––some license
  48. Appropriation––Commercial purpose
    D must be seeking pecuniary advantage

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

    NB: Polydoros––D appropriation for commercial purpose wasn't ever meant for fiction––meant for putting celeb faces on products to sell them
  49. Appropriation––Consent
    Defense to appropriation, BUT, if consent dated, made w/o capacity, or is substantially from image to which consent was granted, it's not valid defense (BARF case)
  50. Copyright Const. Authority
    "Promote the progres of science and useful arts" through protecting © on a federal level.
  51. What can be ©'d?
    Anything fixed in a tangible medium of expression (sufficiently permanent to permit it to be perceived, reproduced, or otherwise communicated for more than a transitory duration)

    NB: Must be original
  52. What can't be ©'d?
    Ideas, themese, bare plotes, non-creative titles, slogan words, methods, systems, formulae, equations, incidents, characters, and scenes a faire and facts and newsevents.
  53. Work for hire impact on ©
    • © goes to employer when:
    • 1. Work created by employee w/in scope of employment; or
    • 2. Indep. K-er of work that falls into one of 9 cats
  54. 9 cats for Indep. K-er that give employer ©
    • 1. Contribution to a collective work;
    • 2. Part of motion picture or AV work;
    • 3. Translation;
    • 4. Supplementary work;
    • 5. Compilation;
    • 6. Instructional text;
    • 7. Test or answer materials to test; and
    • 8. Atlas
  55. Joint works impact on ©
    • One © belongs to two authors when:
    • They intend contributions be merged into inseparable or interdependent parts of a unitary whole

    NB: Each author's contribution must be independently ©-able
  56. Inseparable, define
    Parts have little to no meaning by themselves
  57. Interdependent, define
    Parts achieve their primary significance because of combined effect
  58. Duration of © Protections
    • For works after 1/1/78:
    • - Life + 70
    • - Works for hire or no ID-able author: 95 years or 120 years after creation, whichever is first
  59. © Formalities
    None. (Though benefits come w/ registering ©)
  60. First sale doctrine
    Purchaser of a lawful copy can listen, watch, sell, lend or lease that copy.
  61. Methods to protect © work
    • © symbol
    • Write "Copyright"
    • Both
    • Regster w/ US © Office
  62. Assignability of ©
    Freely assigned and transferred
  63. Writing requirement of ©
    Transfers of ownership (including assignments, mortgages, or any exclusive right) must be in writing
  64. © Registration
    Not req'd

    • Benefits:
    • Needed to:
    • 1. Sue;
    • 2. Get statutory damages;
    • 3. Get atty fees
  65. Post-infringement © registration
    Allowed––can still sue but not get atty fees or stat. dmgs.
  66. © registration w/in 3 mos. of creation rights
    Same as pre-release registration. Allows holder all rights (sue, etc.)
  67. Elements of © Infringement
    • 1. Work is ©-able
    • 2. © is still valid
    • 3. D had access to work
    • 4. Substantial similarity between works
  68. Substantial similarity test in ©
    • 1. What is the general idea or theme of each work?
    • 2. If the same, how are they expressed?
    • Plot, characters, pacing, mood, setting, sequence

    PCP makes you a MeSS.
  69. Contributory infringement
    Causing/materially contributing to infringing conduct of another (w/ knowledge)
  70. Vicarious infringement
    Knowing of infringement by one you have the right and ability to supervise and you do nothing to stop it (and you financially gain from it)
  71. Fair use factors
    • 1. Purpose and char. of work
    • 2. Nature of ©'d work
    • 3. Amt. and substantiality used in relation to work as a whole
    • 4. Effect of the use on the market for or val. of ©'d work (most important)
  72. Fair use factors––Purpose and character of use factors
    • More likely fair use when:
    • 1. Noncommercial;
    • 2. Criticism and comment, teaching and scholarship, or research;
    • 3. News/public interest; and/or
    • 4. Transformative
  73. Fair use factors––Nature of ©'d work factors
    • More likely fair use when copied work is:
    • 1. Informational (rather than creative)
    • 2. Published (rather than unpublished)
    • 3. Not commercially available
  74. Fair use factors––Amount of work used factors
    Amount used is not as important as the proportion, relatively, used
  75. Fair use factors––Effect of use on market factors
    • Most important factor
    • If challenged use become widespread, it would adversely affect market for the ©'d work
  76. Preemption
    • © Act preemepts all equiv. equitable rights to any exclusive © rights
    • Impact: Can't bring state law claims equiv. to what's protected by © law––either subject matter or exclusive rights wise
  77. Preemption test
    • 1. Is the subject matter of the state law claim goverend by © law?
    • 2. Does similar state law claim have extra elements to differentiate it?
  78. Remedies for © Infringement
    • 1. Injunction
    • 2. Actual damages
    • 3. Stat. dmgs. (750-30K/work infringed)
    • 4. Atty fees (if timely registered)
  79. © and the protection of ideas
    • Can't do it, BUT
    • One can protect novel ideas through K––express or implied––or other state causes of axn
Card Set
Entertainment Law
Entertainment Law Flashcards