2013 DCS Committee Reports
The MLRC Defense Counsel Section held its annual meeting November 14th at Proskauer Rose in New York City. The following reports were distributed and discussed by committee chairs and members.
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ADVERTISING & COMMERCIAL SPEECH
Co-Chairs: Steven L. Baron and Jill P. Meyer
Vice-Chair: Brendan Healey
In 2013, the committee leadership (Jill Meyer, Steven Baron and Brendan Healey) continued to focus on developing the committee as a practice resource and forum for exchanging knowledge among MLRC members who advise clients on advertising and commercial speech issues. We used committee meetings in 2013 to host substantive presentations by members and outside speakers on current developments and issues of concern to advertising law practitioners. Presenters and topics included: Sophia Cope, Director of Government and Legal Affairs and Legal Counsel at the NAA, discussing recent and ongoing developments in privacy regulations and laws; Sharon Schneier of Davis Wright Tremaine, counsel to Hearst, discussing a class action lawsuit currently pending in federal court in the Eastern District of Michigan that accuses Hearst and other publishers of violating Michigan’s Video Rental Privacy Act (“VRPA”) by selling mailing lists that allegedly contain personal reading information of its subscribers. On December 4, 2013, Peder Magee, a senior attorney in the FTC’s Division of Privacy and Identity Protection, will speak on recent changes to the Children’s Online Privacy Protection Act (“COPPA”) that went into effect in July 2013.
In 2014, we intend to keep our members abreast of new legal and regulatory developments relating to social media and behavioral advertising. In the upcoming year, we will focus at least some of our attention on retail tracking (i.e. the gathering of Wi-Fi and Bluetooth signals emitted from smartphones to monitor shoppers’ movements around stores) and the implications of the Supreme Court’s denial of certiorari in Marek v. Lane, which leaves in place a class action settlement of $9.5 million arising out of Facebook’s now defunct “Beacon” program. Our committee continues to stay nimble and, as quickly as technology is changing and creating new legal issues, our committee follows topics as they develop and attempts to find speakers at the core of these issues to talk about them.
ALI TASK FORCE
Chair: Thomas S. Leatherbury
The purpose of the ALI Task Force is to monitor the ongoing projects of the American Law Institute in which we have an interest and to which we can contribute our work and our scholarship. Two examples of ALI projects in which our members have participated are various phases of The Restatement (Third) of Torts and the project on Recognition and Enforcement of Foreign Judgments. The ALI has now begun its work on The Restatement (Third) of Torts: Intentional Torts to Persons. Professor and Associate Dean of Academic Affairs at the University of North Texas Dallas School of Law Ellen S. Pryor and Professor Kenneth W. Simons of Boston University School of Law serve as the Reporters. The ALI has also launched its project on The Restatement (Third) of the Law of Information Privacy Principles. Professors Paul M. Schwartz of the University of California, Berkeley−Boalt Hall School of Law, and Daniel J. Solove of the George Washington University School of Law are the reporters. Several MLRC DCS members have joined the Members Consultative Group for each project.
Co-Chairs: Robyn Aronson, Rachel E. Matteo-Boehm and Allison S. Brehm
The California Chapter has continued its practice, begun in 2012, of rotating its quarterly lunch meetings among several Century City locations, a practice that has contributed to strong in-person attendance among network and studio lawyers. In addition to the in-person attendees, we have had strong participation via telephone conference, with numerous participants from Northern California and elsewhere in the state.
Our March meeting was called “Risky Business: Best Practices for Reality TV, Promotional Stunts, and Advertising.” Kelley Drye & Warren hosted the meeting. Dan Helberg, VP of Business and Legal Affairs at Shed Media US; Erica Silverstein, diligence counsel for NBCUniversal; and David Fink, partner at Kelley Drye, discussed the legal risks associated with unscripted programming and marketing stunts, ranging from casting issues to putting participants at risk of harm, as well as issues that arise in the online environment, such as marketing campaigns involving social media. The discussion was moderated by Allison Brehm, also a partner at Kelley Drye.
In June, we covered “Recent Developments in Copyright Law: What is ‘Safe’ and ‘Fair”? The discussion focused on what constitutes fair use in the context of appropriation art and content aggregation, as discussed in the Cariou v. Prince and AP v. Meltwater cases, as well as the scope of the DMCA’s safe harbor, as discussed in the Viacom v. YouTube and UMG v. Veoh cases. Josh Schiller, counsel for Richard Prince; Glen Kulik, counsel for Veoh’s investors; and UCLA Professor Neil Netanel led the lively discussion.
Our September meeting, hosted by Katten Muchin, was called “Your Money for My Life: The Shifting Boundaries of Right of Publicity and Commercial Misappropriation.” Panelists Al Wickers, counsel for Electronic Arts in the Keller, Brown, and Hart cases; David Halberstadter, counsel for Summit Entertainment in the “Hurt Locker” case; and Anatole Klebanow, VP of Legal Affairs at Fox, engaged in an informative discussion moderated by Robyn Aronson of NBCUniversal (and Co-Chair of the California Chapter), about the intersection of the right of publicity and First Amendment defenses, and the practical implications of the recent rulings for content creators.
Our final quarterly meeting will be on December 18, topic TBA.
EMPLOYMENT LAW COMMITTEE
Co-Chairs: Tanya Menton and Tom Wilson
In 2013, the committee leadership continued to focus on developing the committee as a practice resource and forum for exchanging information and best practices among MLRC members who provide employment law advice to media organizations. During the year, we have added new active members from in-house legal departments and law firms.
The committee remains engaged in an ongoing discussion of current developments in employment law of specific concern to media companies. Committee members have hosted presentations on a variety of topics including (1) the NLRB and social media; (2) current state of the law on non-competes in the broadcasting industry and recent legislative efforts; (3) unpaid internships in media organizations, and (4) current trends at the EEOC and U.S. Department of Labor.
Currently the committee is working on a white paper regarding the use of interns by media organizations. The Committee will complete and publish before the end of the year a white paper titled “Non-Competes in the Broadcast Industry.” This paper addresses current state legislation and case law that limits the ability of broadcast employers to enforce non-compete agreements with their employees, what alternatives broadcast employers have in those states with such restrictions, and future legislative action that may occur.
ENTERTAINMENT LAW COMMITTEE
Co-Chairs: David Cohen and Brad Ellis
The mission of the Entertainment Law Committee is to keep its members apprised of key cases and the latest legal developments in areas of interest to our members. To that end, the Committee meets telephonically for an hour the first Wednesday of every month. In preparation for each meeting, the Committee co-chairs review a variety of publications, assembling approximately 12 items of interest to present to the Committee for discussion. An agenda of potential topics is circulated about a week ahead of each meeting; a final meeting agenda with links and attachments is distributed 3-5 days before the call. Agenda items are selected with an eye toward currency, significance, balance, and entertainment value.
Often, we revisit particular cases as developments warrant. Some of the specific topics and cases discussed this past year include: the multiple litigations brought in connection with the Aereo service, the right of publicity as it relates to college athletes and the use of identifiable persons in video games, contract disputes in the entertainment sphere and timely instances of anti-SLAPP litigation. The monthly meetings provide a forum for our members to keep abreast of current developments, share insights and debate potential arguments that best advance the interests of our clients.
The Committee is comprised of approximately 65 lawyers, both in-house and outside counsel, from around the country, and includes many of the leading lawyers in the entertainment and media arenas.
Approximately 15-20 Committee members actively participate on each month’s call. Recently, we implemented a change in format, in which we call for volunteers to suggest topics/cases for discussion and to prepare to present them to the group, creating an opportunity for greater participation by committee members and fostering more in depth analysis and discussion.
In addition, an Entertainment Law subcommittee, headed by AJ Thomas, is presently drafting a white paper on the use of trademarks in expressive works. Our Committee hopes to publish a draft within the coming months.
Co-Chairs: Leonard M. Niehoff and Nicole Hyland
The MLCR Ethics Committee has two principal functions: (1) it assists with ethics-related programming for MLRC conferences and (2) it recruits from its membership and elsewhere authors for the Ethics Corner column. This year, the Committee continued its usual responsibilities with respect to the former. With respect to the latter, the Committee sought to increase significantly the number of Ethics Corner columns published. That goal was achieved. By the end of 2013, the Ethics Committee will have published at least six Ethics Corner columns—twice the number published in 2012—and is likely to have published seven or eight. In addition, this year the Committee has benefited from the additional leadership of Nicole Hyland, who Co-Chairs the Committee along with Len Niehoff.
INTERNATIONAL MEDIA LAW COMMITTEE
Co-Chairs: Brian MacLeod Rogers and Robert D. Balin
Vice-Chair: Gillian Phillips
For the coming year, our Committee plans to continue our bi-monthly conference calls that enable our members to keep on top of emerging media law developments around the world. While we take advantage of our own international membership and their insights into issues and cases close to home, we have also benefited from outside experts on international subjects. These sessions are invaluable for exploring laws affecting the media in parts of the world that are off the beaten track and providing in-depth expertise on important developing issues. Over the past year, we have had insightful discussions about media law in Turkey, Ukraine and Australia, as well as the potential impact of the World Conference on Information Technology.
We have also kept abreast of ongoing developments in the United Kingdom, including defamation law reform and responses to the Leveson Inquiry, and will continue to do so. In addition, we expect to reprise a very successful in-depth session on practical approaches to international issues affecting U.S.-based online publishers.
We assisted with this year’s first-ever MLRC conference on Latin American-Hispanic Media Law held in Miami and will support next year’s conference to be held March 10, 2014, as well as continuing its support for the MLRC’s International Media Lawyers Program. The assistance of Dave Heller has been invaluable, and we will miss Brian MacLeod Rogers, who retires as Co-Chair at the end of the year after five years. However, we welcome the addition of Julie Ford as our new Vice-Chair. And we look forward to a productive 2014.
INTERNET LAW COMMITTEE
Co-Chairs: John C. Greiner and Katherine Surprenant
The Internet Committee continued to conduct quarterly conference call meetings this year to discuss recent developments relating to the “Practically Pocket-Sized Guide to Internet Law” topics. We have used these meetings as an opportunity to explore certain Treatise topics in greater depth, commencing with a short presentation by the Committee member who authored the relevant chapter, followed by open discussion.
Throughout the year, Committee members circulated summaries of new court decisions and other notable developments, which provide the twofold benefit of timely updates to the group and a ready source of information for the next update to the Guide.
The Committee also successfully published an updated version of the Treatise in July of this year. The online publication resulted in an unusually high number of clicks in its first day – nearly 300. The Committee intends to update the Treatise annually. Annual updates will include new topics as appropriate.
Finally, Jack Greiner is stepping down as co-chair after a six year tenure. Katherine Surprenant will remain as co-chair and Jeremy Mishkin will assume Jack’s role effective immediately.
LEGISLATIVE AFFAIRS COMMITTEE
Co-Chairs: Laurie A. Babinski and James A. McLaughlin
The Legislative Affairs Committee has been tracking pending legislation including the Free Flow of Information Act of 2013 (S. 987/H.R. 1962); the Cyber Intelligence Sharing and Protection Act (“CISPA”) (H.R. 624); the PETITION Act (federal anti-SLAPP statute); the Electronic Communications Privacy Act (“ECPA”) Amendments Act of 2013 (S. 607); and the FOIA Act (H.R. 1211). We have issued a white paper on potential amendments to the Espionage Act and anticipate articles about the shield and anti-SLAPP bills in the next MLRC MediaLawLetter.
The Committee has focused and will continue to focus on tracking legislation while increasing the number of updates to MLRC members. Our plan is to make those updates more frequent in the form of MLRC MediaLawLetter articles. In order to achieve this goal, we will be assigning particular areas of law (shield, FOIA, SLAPP, etc.) to individual members of the committee to ensure greater focus and attention on each piece of legislation. We will also be searching for a vice chair for the committee with the ultimate goal of taking over Jim McLaughlin’s role as co-chair.
Co-Chairs: Robert C. Clothier and James A. Hemphill
The Litigation Committee – successor to the Pre-Trial and Trial Committees – released in early 2013 an updated Discovery Roadmap to include analysis regarding the now ubiquitous electronically stored information (ESI).
The Litigation Committee is near completion of its efforts to update the Issue Checklist for Motions to Dismiss and Summary Judgment in a Defamation Action, which was last updated in 2004, to include issues relating to publications in an online world. We expect it to be finalized and distributed to the MLRC membership shortly.
Lastly, the Litigation Committee is focusing its efforts on two substantial white papers that we anticipate will require two years to complete. One white paper will create a national roster of experts used in libel cases involving the media. An Expert Witness Subcommittee – led by Doug Pierce – recently circulated a request to the MLRC membership for the names of experts who should be included in this roster.
The other white paper is focusing on settlement agreements in libel cases including practical tips and suggested template provisions. A Settlement Agreement Subcommittee led by Lizzie Seidlin-Bernstein and Brian Sher is spearheading this effort. They have recently reached out to the full Committee membership and will be circulating a plea to general MLRC membership for suggestions and sample agreements.
For both of these efforts, the Litigation Committee and its two subcommittees need the help of every MLRC member and hope for great responses to our outreach efforts. We welcome any suggestions from others as to white papers, roadmaps, checklists or other projects that might be of interest to the MLRC membership.
MEDIA COPYRIGHT AND TRADEMARK COMMITTEE
Co-Chairs: Maya Windholz and Rebecca Sanhueza
The Copyright and Trademark Committee was established in 2013 to keep the MLRC membership current on cases and trends in the areas of copyright and trademark law, particularly for those who do not practice in these specialties on a day-to-day basis. In addition to two Co-Chairs (Maya Windholz and Rebecca Sanhueza, who replaced Tim Jucovy in October), the Committee has a Steering Committee to assist with meetings and with other responsibilities of the Committee (Pat Carome, Mike Huget, Bruce Keller, Yoko Miyashita, Lou Petrich, Liz Ritvo, Regina Thomas). The full Committee holds one-hour meetings every other month, by phone, open to MLRC members. A typical meeting agenda includes two or three brief presentations, followed by Q&A and discussion, regarding recent key cases in the field or other legal developments of interest to news and entertainment lawyers. Discussion topics in 2013 have covered a wide range of areas, including topics as diverse as: the Meltwater v. AP case, the Aereo litigation, the Oprah “Own Your Power” slogan case and the football videogame cases (Brown, Keller and Hart), plus others. We have also set time in certain meetings for discussion of “hypotheticals,” to encourage participation among members and to hear varying perspectives on business and legal challenges shared by members. In addition, those who are on the Committee receive an email prior to each bi-monthly meeting, outlining other “recent developments” – in the form of cites to recent cases of interest or relevant articles. The Committee scheduled 5 meetings in 2013 (April, June, July, September and November). The plan for 2014 is to hold 6 meetings, which will follow the same format. By year-end, we will also do a self-assessment, to ensure that the Committee is providing value to MLRC.
Co-Chairs: Russell Hickey and Michael Berry
The MediaLawLetter Committee this year continued its principal work – assisting Dave Heller and the MLRC staff with identifying and preparing content for the monthly MediaLawLetter and providing advice as needed about the MediaLawDaily. The Committee is working on developing a quarterly column written by in-house counsel called “A View From The Inside.” The column will offer in-house attorneys’ insights on a wide range of topics, from practical tips on budgeting to emerging trends in their areas of practice. Several in-house attorneys have volunteered to assist with this project, and we are hoping to publish the first column in the coming months. In the coming year, the Committee will be continuing to work on improving the MediaLawLetter and MediaLawDaily, both of which serve as important resources to MLRC members.
Co-Chairs: Robert D. Lystad and Thomas Burke
The Membership Committee continued its recruiting efforts. Primarily through the efforts of the MLRC staff, the committee greatly expanded the list of both potential media nominees (from approximately 50 in 2012 to 103 in 2013) and potential law firms (from approximately 15 in 2012 to 33 in 2013). The nominees were culled in part from attendance lists at prior MLRC conferences. Committee members were assigned as the primary recruiter to contact the nominees. Some members volunteered to help recruit certain nominees for which they had contacts. Success rates have not yet been determined.
MODEL SHIELD LAW COMMITTEE
Chair: Leita Walker
The Model Shield Law Committee has been working on building its membership and responding to a renewed interest in a federal shield law. It expects to issue updates to two reports this year: a 2011 report titled “Resource Materials for Defining ‘Journalist’ and ‘Media’ in Litigation and Legislation” and a 2010 “Catalog of Subpoena Decisions by Category of Material and Reasons Sought.” The task force also met within the past month to discuss updating the MLRC’s Model Shield Law, which was last updated in 2007.
NEW LEGAL DEVELOPMENTS COMMITTEE
Co-Chairs: David J. Bodney and David M. Giles
The mandate of the New Developments Committee is to identify developments and emerging trends that MLRC and its committees should monitor, explore, or report on to the membership. The New Developments Committee convenes four times each year by phone to discuss recent developments in litigation, legislation, and technology; to identify topics of interest to the membership; and to attempt to spot trends that may impact journalists and media companies.
The topics we addressed during our 2013 meetings included: how to deal with corrections/clarifications/retractions on multiple platforms; writing and updating social media guidelines; FTC and Privacy issues, the latest on the NSA subpoenas and related data collection issues; updates on efforts to pass a federal anti-SLAPP statute and the federal shield law; right of publicity and misappropriation and the challenges of live streaming in courts.
Co-Chairs: William L. Chapman and Cynthia L. Counts
In 2013, the Committee continued its practice of holding telephone conference calls on the fourth Thursday of January, March, May, July, and September. Although there are about 40 MLRC members on the Committee, only about seven to ten members were regular participants on the calls.
The Committee has completed two projects that it carried over from 2012. Tom Julin and Mark Flores prepared an article titled “Online Access to Trial Exhibits: A Simple Solution.” The article discusses several high-profile cases in which courts have posted trial exhibits on their websites and proposes a model rule to make online access the norm not the exception. Tom Williams prepared an article titled “Access to Public Employee Pension Records.” It discusses the split in jurisdictions between those that permit access to such records and those that do not, offering suggestions to afford access either through legislation or litigation. The Committee anticipates that both articles will be available to MLRC members by the end of November.
Eric Robinson, joined by Elizabeth Schilken and Cynthia Counts, has made substantial progress on a 50-state survey of expungement/annulment laws. Members from most of the fifty states and several of the territories have agreed to research and summarize important aspects of the expungement laws in their state, and they will be recognized as participants on the survey. Their hope is to complete and make the survey available to MLRC members by the end of the year.
In 2012, Mickey Osterreicher undertook a project on press credentialing but was not able to gather much information from MLRC members. In 2013, he learned that the National Press Photographer’s Association is doing an online media credentialing practices survey. At the September conference call, Mickey reported that there had been about 800 responses to the survey. Mickey will provide the results of the survey to the Committee when it is completed.
PRE-PUBLICATION / PRE-BROADCAST COMMITTEE
Co-Chairs: Ashley Messenger and Shannon Zmud Teicher
In 2013 the MLRC Pre-Publication/Pre-Broadcast Committee was co-chaired by Ashley Messenger, Associate General Counsel for NPR, and Shannon Zmud Teicher, a Partner at Jackson Walker LLP. In its monthly conference calls, the committee had speakers who led discussions on current cases, such as Young v. Gannett Satellite Information Network, Inc., a Sixth Circuit decision involving a police officer who won a libel case, Stepanov v. Journalism Development Network, Inc., a libel case arising out of four articles discussing organized crime and money laundering, and Slate v. ABC, a copyright case arising over a clip that appeared on the ABC news program 20/20.
The committee also had speakers and led group discussions on a variety of legal issues, including the complexities of handling international cases, broadcast rules that implicate the First Amendment, and opinion decisions throughout the country.
The committee completed a paper on Risks and Tips for Digital Images, training materials on Publishing Photos Images, or Other Illustrations, and training materials on Can I Use This Clip? A Guide to Audio/Video Use. The committee has two pending projects regarding Occupations and Public Figure Status and the Fair Report Privilege.
Also, we are pleased to announce that Jennifer Peterson, Media Counsel and Deputy General Counsel of Journal Communications, will succeed Ashley Messenger, as the committee’s new co-chair in 2014 and that Dana Rosen, General Counsel of Werner Media, will be our new vice-chair. Last, but not least, the committee would like to thank Ashley Messenger for all the many projects and new initiatives she has led during her tenure as co-chair of the committee.
STATE LEGISLATIVE AFFAIRS COMMITTEE
Co-Chairs: Laura Lee Prather and Elizabeth Allen
The MLRC State Legislative Committee is now starting its third year of existence. This year has been a tremendous year of growth for our committee. We have added co-chair, Elizabeth Allen, and have added representation from Connecticut (Eric Kemmler), Minnesota (John Borger), Nevada and Hawaii (Mark Hinueber), Oregon (Duane Bosworth) and the National Association of Broadcasters (Jerianne Timmerman). We also have new representation from Arizona (Chris Moeser), North Carolina (Marc Prak), and Tennessee (Robb Harvey). This brings our total representation to 31 states, D.C. and several national organizations. Throughout 2013, our committee has identified, tracked and impacted legislative measures impacting the media. We exchange information about trends in legislative efforts, such as crime scene photos, mug shots, right of publicity and papparazi legislation – so that we can brainstorm about ways to combat those initiatives that are adverse to First Amendment interests. And, we help to create and build momentum in efforts to get positive open government and First Amendment legislation passed, such as retraction statutes, anti-slapp measures, and reporter’s privilege laws. This year, we have worked closely with other national organizations to roll out model anti-slapp legislation to be considered in those states that do not have anti-slapp laws or that need theirs expanded. We also are increasing the utility of our webpage with legislative developments and literature concerning legislative efforts to help all MLRC members. We meet once a month during the legislative session and, like state legislatures, recess for the summer. Our meetings typically consist of reports on what is going on in various states and brainstorming about issues at hand, such as effective ways to combat public notice challenges, increased costs for public records, and closing off access to records and meetings of governmental agencies. We have compiled a list of state legislative highlights for the membership including the most significant pieces of open government and First Amendment legislation (good and bad) to pass the various state legislative bodies. In addition to combatting countless efforts to close off access and move public notices to government websites, some of the successes over the last year include expansion of reporter’s privilege (in California and Georgia), passage of retraction statutes (in Washington and Texas), and expansion of anti-slapp statutes (in Nevada). In addition, there has been some headway made in overturning poor judicial precedent through legislation in South Dakota (adopting legislation to expressly provide the right to live streaming of high school athletics) and providing the public with the right to speak at open meetings in Florida.
Robin Luce Hermann of Butzel Long has agreed to succeed Laura Prather as committee co-chair when her term expires at the end of the year.