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October 2011

MediaLawLetter April 2011

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MediaLawLetter April 2011

 Download Publication COPYRIGHT S.D.N.Y.: A Bridge Too Far – The Google Books SettlementProposed Settlement Rejected The Authors Guild v. Google S.D.N.Y.: Appropriation Artist’s Million Dollar Works Deemed Copyright InfringementsJudge Denies Fair Use Defense to Controversial Art Form Cariou v. Prince S.D.N.Y.: Court Denies Preliminary Injunction Against Photo-Sharing Website DMCA Safe Harbor Protections Apply Wolk v….

Ethics Corner: A Convenient Untruth

By Len Niehoff A vast body of legal ethics scholarship addresses the dilemma faced by the lawyer who learns that her client intends to lie, or has lied, while testifying.  The debate typically assumes that the lawyer harbors no uncertainties about what the client plans to do or has done.  The client is committing perjury…

Phone-Hacking in the UK and Damages

Last September the New York Times ran a long article about illegal phone-hacking by the best-selling UK tabloid the News of the World.  News International, the publisher of the newspaper, responded in characteristically combative fashion by dismissing the allegations as baseless and untrue and even accusing the New York Times of breaching its own ethical…

UK Government Releases Libel Reform Bill

By Niri Shan and Lorna Caddy In March, the UK Ministry of Justice released a much awaited Draft Defamation Bill to reform English libel law.  This article analyzes some of the key changes that would ensue if the Bill is enacted and what those changes would mean in practice for claimants and defendants. We also…

High Court Holds Civil Commitment Proceedings Presumptively Open to Press and Public

Little did reporter Dennis Tatz of The Patriot Ledger in Quincy know that when he attempted to enter a Massachusetts hospital room temporarily serving as a courtroom to cover a civil commitment proceeding, his doing so would lead to an important decision by the Supreme Judicial Court of Massachusetts establishing a presumptive right of public…

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Bloomberg News Wins End to “Provisional Sealing” of Filings in Fraud Case

A New Jersey Superior Court Judge has vacated a 2008 sealing order signed by his predecessor that allowed parties in a massive financial fraud suit to provisionally blanket seal their filings at whim for months without any judicial review.  Fairfax Financial Holdings v. S.A.C. Capital Management, No. 2032-06 (N.J. Sup. Ct. April 15, 2011). Superior…

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Court Quashes Subpoena to Reporter in Fraud Suit Against Goldman Sachs

By Amanda M. Leith The Southern District of New York has quashed a subpoena served on Jesse Eisinger, a former Wall Street Journal reporter, seeking his testimony in a case brought by plaintiffs Janet and James Baker against Goldman Sachs & Co. (“Goldman”), arising from services Goldman provided in connection with the merger of the…

Court Quashes Libel Plaintiff’s Subpoena to Non-Party Reporter

A federal judge in the Eastern District of Pennsylvania upheld the First Amendment reporter’s privilege and quashed a subpoena seeking testimony from a Philadelphia television station’s executive producer.  A libel plaintiff sought the producer’s testimony about the station’s own reporting of an FBI raid that was allegedly inaccurately reported by the competitor Philadelphia radio station…

Court Quashes Registration of Canadian Defamation Judgment Under SPEECH Act

In Pontigon v. Lord, No. ED 95677, 2011 WL 1522565 (Mo. Ct. App., Apr. 19, 2011), the Missouri Court of Appeals quashed the registration of a Canadian defamation judgment based upon the trial court’s failure to make the necessary factual findings required by the SPEECH Act, 28 U.S.C. §4101-05 (2010).  This appears to be one…

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CBS and NBC Win Summary Judgment In Texas Defamation Case

A Texas state court judge granted summary judgment to CBS and NBC in a lawsuit brought by the owner of a horse boarding facility who claimed she and her ranch were defamed by a series of news broadcasts reporting on allegations, investigative and official proceedings, and a public controversy concerning the care and condition of…

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Court Affirms Summary Judgment for Cleveland Scene in Public Official Libel Suit

The Sixth Circuit this month affirmed summary judgment for Cleveland Scene magazine, holding that an article mocking the Mayor of Seven Hills, Ohio was clearly protected opinion. Bentkowski v. Scene Magazine, aka Cleveland Scene, et al., No. 09-4547, 2011 U.S. App. LEXIS 7912 (6th Cir. April 19, 2011) (Martin, Suhrheinrich, Kethledge, JJ.).  Relying on federal…

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Court Reverses $310,000 Jury Damage Award Over “Communist Sympathizer” Label

Citing to the Supreme Court’s recent decision in Snyder v. Phelps, the Washington Court of Appeals reversed a $310,000 jury damage award to a Vietnamese-American plaintiff and community organization, over statements accusing them of being Communist sympathizers.  Tan v. Le, et al., No. 39447-2-II, 2011 Wash. App. LEXIS 915 (Wash. App. April 19, 2011) (Armstrong,…

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Statements about Criminal Investigation Too Speculative to Support Defamation Liability

The U.S. District Court for the District of Columbia ruled on March 30 that a Georgia poultry processor’s defamation claims against the CBS television program 60 Minutes and one of its interview subjects could not go forward.  Mar-Jac Poultry, Inc. v. Katz, No. 03-cv-02422, 2011 WL 1140447, at *15 (D.D.C. Mar. 30, 2011). The order…

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Court Reinstates False Light Claim Over News Broadcast

Former Macomb, Oklahoma high school basketball coach Bill Grogan sued KOKH (the Oklahoma City FOX affiliate), its reporter, and two of its anchors for defamation and false light following a news report about parents’ complaints that he had threatened to have students shot after a minor disturbance at a basketball game.  The trial court granted…

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Defamation, Section 1983 Claims Over Dateline NBC Investigation Dismissed with Prejudice

By Gayle Sproul and Lucas Tanglen A federal judge in Colorado has dismissed with prejudice defamation and section 1983 claims relating to a Dateline NBC (“Dateline“) investigation of insurance annuity sales. Broker’s Choice of America, Inc. v. NBC Universal, Inc., 2011 WL 97236 (D. Colo. Jan. 11, 2011) (Arguello, J.). In rejecting the defamation claims,…

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California Appeals Court Dismisses “Libel in Fiction” Suit Over CSI Episode

On March 1, 2011, in Tamkin v. CBS Broadcasting Inc., the California Court of Appeal clarified the standards under California Civil Code § 425.16, California‘s anti-SLAPP statute, by reaffirming that the statute‘s public interest requirement should be applied broadly. Tamkin and other recent cases establish a bright line rule that an issue of public interest…

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Court Debates the Countours of Protected Speech in Overturning the Stolen Valor Act

In an exchange of sharply worded opinions, a divided Ninth Circuit Court of Appeals refused to rehear en banc the panel decision that struck down the Stolen Valor Act. United States v. Alvarez, Case No. 08-50345 (9th Cir. March 21, 2011 ). Relying on distinctly different interpretations of seminal defamation cases such as Sullivan, Gertz…

Court Denies Preliminary Injunction Against Photo-Sharing Website

New York federal district court denied a motion for a preliminary injunction in a copyright infringement suit brought by a pro se visual artist, Sheila Wolk, against the photo-sharing website, Photobucket. Wolk v. Kodak Imaging Network, Inc. et al., 2011 U.S. Dist. LEXIS 27541 (S.D.N.Y. March 17, 2011) (Sweet, J.). Photobucket allows users to upload…

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Appropriation Artist’s Million Dollar Works Deemed Copyright Infringements

Is it permissible under copyright law for an artist to appropriate a protected image of another and then alter it for commercial sale? Or is appropriation art by definition misappropriation? These questions surfaced, but were ultimately left unresolved, in the settled lawsuit between the Associated Press and Shepard Fairey – the street artist responsible for…

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A Bridge Too Far: The Google Books Settlement

At the time that the proposed settlement of the Google Books litigation was revealed in October of 2008, it was hailed as a visionary break through. Richard Sarnoff, then President of the Association of American Publishers and an architect of the settlement described the proposed settlement‘s benefits: “From our perspective, the agreement creates an innovative…

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