Chapter 7/8 Case Briefs PDF

Preview

Summary

Download Chapter 7/8 Case Briefs PDF

Description

Roberson v. Rochester Folding Box Co. (1902) page 260 1.CASE NAME: Roberson v. Rochester Folding Box Co. 2.CITATION/DATE: 171 N.Y. 538 (1902) 3.LEVEL OF COURT: State’s high court 4.FACTS (The story. Who's suing whom, and why.): In 1902, young Abigail Roberson of Albany, N.Y., awoke one morning to find her picture all over town on posters advertising Franklin Mills Flour. Twenty-five thousand copies of the advertisement had been placed in stores, warehouses, saloons and other public places. 5.PLAINTIFF'S LEGAL REASONING/ARGUMENT: Roberson said she felt embarrassed and humiliated, that she suffered greatly from this commercial exploitation and she therefore sued for invasion of privacy. 6.DEFENDANT'S LEGAL REASONING/ARGUMENT: N/A 7.COURT’S DECISION AND LEGAL REASONING: Roberson lost her case, and the state’s high court ruled that an examination of the authorities leads us to the conclusion that the so-called right of privacy has not yet found an abiding place in our jurisprudence, and, as we view it, the doctrine cannot now be incorporated without doing violence to settled principles of law by which the profession and the public have long been guided. 8.DISSENT (if any) LEGAL REASONING/ARGUMENT: N/A in dissent but, following this decision a great controversy arose in New York, led by newspapers and magazines, many of whom expressed outrage at the way the court had treated Roberson. The controversy settled on the state legislature, which during the following year, 1903, adopted the nation’s first privacy law. The statute was very narrow; that is, it prohibited a very specific kind of conduct. Use of an individual’s name or likeness without the individual’s

consent for advertising or trade purposes was made a minor crime. In addition to the criminal penalty, the statute allowed the injured party to seek both an injunction to stop the use of the name or picture and money damages. 9.PRECEDENT/POINT OF LAW/ANALYSIS: After this case the point of law/analysis “appropriation” which means it is illegal to use an individual’s name or likeness for commercial or trade purposes without consent has formed. 10.MAKE YOUR ARGUMENT: DOES THIS CASE SUPPORT OR DETRACT FROM FIRST AMENDMENT PROTECTIONS? WHY/WHY NOT? HOW? SUPPORT YOUR CLAIMS, FOR UNSUPPORTED CLAIMS CRUMBLE--U.C.C. I argue that this case supports the first amendment rights for the defendant but does not support the plaintiff. For example, in this case, the defendant was able to express their thoughts freely through their advertisement by using Roberson. On the other hand, this case detracts the first amendment for Roberson because now her presence is widely known in that area which could force her to restrict her freedom.

Comedy III Inc. v. Gary Saderup Inc. (2001) 267-268. [Note the Transformative Use Test 267-272] 1.CASE NAME: Comedy III Inc. v. Gary Saderup Inc. 2.CITATION/DATE: 21 P. 3d 797 (2001) 3.LEVEL OF COURT: California high court 4.FACTS (The story. Who's suing whom, and why.): An artist named Gary Saderup created a charcoal drawing of the Three Stooges comedy team. Making a single drawing is not a problem since the law exempts single and original works of fine art from the purview of the California statute. But Saderup went on to create lithographic prints and T-shirts that also contained the drawing and was sued by Comedy III Inc., a company that owns the rights to the Stooges. 5.PLAINTIFF'S LEGAL REASONING/ARGUMENT: N/A

6.DEFENDANT'S LEGAL REASONING/ARGUMENT: N/A 7.COURT’S DECISION AND LEGAL REASONING: Justices on the California high court noted immediately the First Amendment implications in the issue. “Because celebrities take on public meaning, the appropriation of their likenesses may have important uses in uninhibited debate on public issues, particularly debates about culture and values,” the court noted. The creative appropriation of celebrity images can be an important avenue of individual expression, the justices added. The importance of celebrities in society means that the right to publicity has the potential of censoring significant expression by suppressing alternative versions of celebrity images that are “iconoclastic, irrelevant, or  otherwise attempt to redefine the celebrity’s image.” There must be a test, then, that takes these values into account, the justices went on. The court focused on what it called the transformative elements in the reproduction. If the reproduction is simply a literal translation of the celebrity’s image, then the First Amendment concerns are surely minimal. But it is a different matter if the user has added other elements to the image, has significantly transformed the image into a parody, used the name in a song, lampooned the prominent person, or in some way used the celebrity’s likeness as a vehicle for the expression of opinion or ideas. Then the rights of free expression take precedence over the right of the celebrity to protect his or her right to publicity. As noted above, this rule from the Three Stooges case is frequently known as the transformative use test. In this case, the court said, Saderup used a literal depiction of the Stooges for commercial gain without adding significant expression beyond his trespass on the right to publicity. He was held liable for violating the publicity rights of Comedy III Productions. 8.DISSENT (if any) LEGAL REASONING/ARGUMENT: N/A 9.PRECEDENT/POINT OF LAW/ANALYSIS: The point of law/analysis is appropriation which means it is illegal to use an individual’s name or likeness for commercial or trade purposes without consent has formed. On top of appropriation The case resulted in the development of the transformative use test for balancing right of publicity interests against artistic freedom of expression concerns. Transformative use test: a useful test for determining when the use of a celebrity’s likeness constitutes an infringement on the right of publicity, and when it is protected free expression. The test, which is known as the transformative use test, has been cited favorably by other courts. 10.MAKE YOUR ARGUMENT: DOES THIS CASE SUPPORT OR DETRACT FROM FIRST AMENDMENT PROTECTIONS? WHY/WHY NOT? HOW? SUPPORT YOUR CLAIMS, FOR UNSUPPORTED CLAIMS CRUMBLE--U.C.C.

I argue that this case detracts from the first amendment protections because this case prevented Gary Saderup from creating lithographic prints and T-shirts which contain the Stooges. He lost his freedom of expressing his thoughts by using the Stooges in his lithographic prints and T-shirts. However, I argue that the transformative use test which was formed from this case supports the first amendment protections. This is because the test allows people to freely create what they want if the creator adds significant creative elements and sufficiently transforms the likeness or identity into the original expression.

Time, Inc. v Hill (1967) 274 [Provides 1st Amendment reasoning for Booth Rule] 1.CASE NAME: Time, Inc. v Hill (1967) 2.CITATION/DATE: 385 U.S. 374 (1967) 3.LEVEL OF COURT: U.S. Supreme Court 4.FACTS (The story. Who's suing whom, and why.): N/A 5.PLAINTIFF'S LEGAL REASONING/ARGUMENT: N/A 6.DEFENDANT'S LEGAL REASONING/ARGUMENT: N/A 7.COURT’S DECISION AND LEGAL REASONING: The U.S. Supreme Court has ruled that the fact that newspapers and books and magazines are sold for profit does not deny them the protection of liberty of expression. 8.DISSENT (if any) LEGAL REASONING/ARGUMENT: N/A 9.PRECEDENT/POINT OF LAW/ANALYSIS: This case backed up the Booth Rule, which provides fairly broad protection to the mass media in most states if an individual’s name or likeness is used in advertising for a particular information medium.

10.MAKE YOUR ARGUMENT: DOES THIS CASE SUPPORT OR DETRACT FROM FIRST AMENDMENT PROTECTIONS? WHY/WHY NOT? HOW? SUPPORT YOUR CLAIMS, FOR UNSUPPORTED CLAIMS CRUMBLE--U.C.C. I would argue that this case supports the First Amendment protections because it is allowing the mass media more freedom of speech/expression even though they are making a profit.

Messenger v. Gruner + Jahr Printing any5td Publishing (2000) 275 1.CASE NAME: Messenger v. Gruner + Jahr Printing any5td Publishing (2000) 2.CITATION/DATE: 94 N.Y. 2d 436 (2000) 3.LEVEL OF COURT: New York Court of Appeals 4.FACTS (The story. Who's suing whom, and why.): In another case, a 14-year-old Florida girl posed for a series of pictures that she believed would appear in Young and Modern, a magazine aimed at teenage girls. The photos appeared in a 1995 edition of the publication but not exactly in the context the young model expected. They illustrated a regularly published column called Love Crisis. In this edition, a 14-year-old letter writer told the columnist she had gotten drunk at a party and had sex with three different boys. What should I do? she asked. Don’t do it again, the advice columnist replied, and be sure to get tested for both sexually transmitted diseases and pregnancy. The column was headlined, “I got trashed and had sex with three guys,” and three photos of the plaintiff were used to illustrate the letter. 5.PLAINTIFF'S LEGAL REASONING/ARGUMENT: She alleged the photos were published for commercial purposes 6.DEFENDANT'S LEGAL REASONING/ARGUMENT: N/A 7.COURT’S DECISION AND LEGAL REASONING: The New York Court of Appeals disagreed with the plaintiff. The article was newsworthy, the court said. It was not an advertisement in disguise. The fact that a publication may have used the

photos primarily to enhance the value of the magazine by increasing its circulation did not mean that the photos were used for purposes of trade. 8.DISSENT (if any) LEGAL REASONING/ARGUMENT: N/A

9.PRECEDENT/POINT OF LAW/ANALYSIS: Use of a person’s name or photograph in an advertisement on television, on radio, in newspapers, in magazines, on the Internet, on posters, on billboards and so forth is considered in the general prohibition against a commercial use. 10.MAKE YOUR ARGUMENT: DOES THIS CASE SUPPORT OR DETRACT FROM FIRST AMENDMENT PROTECTIONS? WHY/WHY NOT? HOW? SUPPORT YOUR CLAIMS, FOR UNSUPPORTED CLAIMS CRUMBLE--U.C.C. I would argue that this case supports first amendment protections because simply publishing something doesn’t necessarily mean the intention was for a commercial use. The girl being photographed was also aware that her pictures were going to be used in an issue and didn’t have a disagreement with this until the photos were alongside an undesirable headline.

Preston v. Martin Bregman Productions, Inc. (1991) 276 1.CASE NAME: Preston v. Martin Bregman Productions, Inc. (1991) 2.CITATION/DATE: 765 F. Supp. 116 (1991) 3.LEVEL OF COURT: N/A 4.FACTS (The story. Who's suing whom, and why.): N/A 5.PLAINTIFF'S LEGAL REASONING/ARGUMENT: N/A 6.DEFENDANT'S LEGAL REASONING/ARGUMENT:

N/A 7.COURT’S DECISION AND LEGAL REASONING: “The doctrine of incidental use was developed,” one court ruled, “to address concerns that penalizing every unauthorized use, no matter how insignificant or fleeting, of a person’s name or likeness would impose undue burdens on expressive activity.” 8.DISSENT (if any) LEGAL REASONING/ARGUMENT: N/A 9.PRECEDENT/POINT OF LAW/ANALYSIS: The doctrine of incidental use is recognized in many jurisdictions and permits a fleeting or brief use of an individual’s name or likeness in some kinds of commercial creations. 10.MAKE YOUR ARGUMENT: DOES THIS CASE SUPPORT OR DETRACT FROM FIRST AMENDMENT PROTECTIONS? WHY/WHY NOT? HOW? SUPPORT YOUR CLAIMS, FOR UNSUPPORTED CLAIMS CRUMBLE--U.C.C. I would argue that this case supports first amendment protections because it allows for incidental or brief use of someone’s name or likeness without necessitation court action every time. With this doctrine the courts are freed up to take on bigger cases that truly exploit a person.

Booth v. Curtis Publishing Co. (1962) 277 1.CASE NAME: Booth v. Curtis Publishing Co. 2.CITATION/DATE: 11 N.Y.S. 2d 907 (1962). 3.LEVEL OF COURT: The New York Supreme Court 4.FACTS (The story. Who's suing whom, and why.): Actress Shirley Booth appeared in a picture of a published feature article in the travel magazine Holiday. T  he photograph of Booth later appeared in advertisements for the magazine. Booth sued the magazine for the images of her that appeared in the advertisements. 5.PLAINTIFF'S LEGAL REASONING/ARGUMENT: Booth did not consent to the image being used in advertisements.

6.DEFENDANT'S LEGAL REASONING/ARGUMENT: N/A 7.COURT’S DECISION AND LEGAL REASONING: The courts refused to call the use of the image in the advertisements an invasion of privacy. Stating that the maintenance of freedom of expression depends on the economic support of the press by advertisements and subscribers, and to win such support, a publication or broadcasting station must be able to promote itself. Since the image was not used to promote things like food, alcohol, or power tools, etc., but instead used the photo that had already appeared in the magazine to promote the magazine itself, the use of the photo did not constitute an invasion of privacy. Therefore, it was not considered appropriation. Appropriation: taking a person’s name, picture, photograph or likeness and using it for commercial gain without permission. 8.DISSENT (if any) LEGAL REASONING/ARGUMENT: N/A 9.PRECEDENT/POINT OF LAW/ANALYSIS: The use of a person’s name or likeness that has already been part or will be a part of the medium’s news or information content, the use of the person’s name or likeness in an advertisement for  the magazine or a newspaper or a television program is usually not regarded as an appropriation. 10.MAKE YOUR ARGUMENT: DOES THIS CASE SUPPORT OR DETRACT FROM FIRST AMENDMENT PROTECTIONS? WHY/WHY NOT? HOW? SUPPORT YOUR CLAIMS, FOR UNSUPPORTED CLAIMS CRUMBLE--U.C.C. I argue that this case does support First Amendment protections. In this case, Booth’s photo was used in the magazine in an article that had to do with travel. Then was later used in advertisements that were pertinent to the magazine. If a medium was already given consent to use the name or likeness of a person, using the person’s name or likeness in a similar manner does not express an invasion of privacy.

Lowe v. Hearst Communications, Inc. (2006) 301 1.CASE NAME: Lowe v. Hearst Communications, Inc.

2.CITATION/DATE: 34 M.L.R. 1823 (2006) 3.LEVEL OF COURT: N/A 4.FACTS (The story. Who's suing whom, and why.): N/A 5.PLAINTIFF'S LEGAL REASONING/ARGUMENT: N/A 6.DEFENDANT'S LEGAL REASONING/ARGUMENT: N/A 7.COURT’S DECISION AND LEGAL REASONING: N/A 8.DISSENT (if any) LEGAL REASONING/ARGUMENT: N/A 9.PRECEDENT/POINT OF LAW/ANALYSIS: Publicity in privacy laws means that the material is communicated to the public at large or to a great number of people, making it certain that the facts will shortly become public knowledge. This kind of publicity can usually be presumed when a story is published in a newspaper, broadcast over radio or television or posted on a Web site. Simply communicating the facts to two or three people, on the other hand, does not amount to “publicity.” Publication, in libel law, means to communicate the material to a single third party. 10.MAKE YOUR ARGUMENT: DOES THIS CASE SUPPORT OR DETRACT FROM FIRST AMENDMENT PROTECTIONS? WHY/WHY NOT? HOW? SUPPORT YOUR CLAIMS, FOR UNSUPPORTED CLAIMS CRUMBLE--U.C.C. I argue that this does support First Amendment protections. Laying down what specifically constitutes “publicity” versus “publication,” helps to analyze the extent to which language can be determined as defamatory. Defamatory language that is spoken through publicity has a far wider reach then publication does. Therefore, the ramifications to an individual will be much greater in publicity rather than publication. It’s important for free expression protections to have defined spaces of where things can be said and where they cannot.

Cox Broadcasting v. Cohn (1975) 304 1.CASE NAME: Cox Broadcasting v. Cohn 2.CITATION/DATE: 420 U.S. 469 (1975) 3.LEVEL OF COURT: The Supreme Court 4.FACTS (The story. Who's suing whom, and why.): A Georgia broadcasting station was sued after publishing the name of a rape victim. It then went to The Supreme Court where the decision was not upheld because the information was available in public records. 5.PLAINTIFF'S LEGAL REASONING/ARGUMENT: Because the information was used in public records, it was not an invasion of privacy to use it in a news story. 6.DEFENDANT'S LEGAL REASONING/ARGUMENT: N/A 7.COURT’S DECISION AND LEGAL REASONING: The Supreme Court ruled that a privacy action against the Georgia broadcasting station for publishing the name of a rape victim could not be upheld because the victim’s identity had been included in public court documents. 8.DISSENT (if any) LEGAL REASONING/ARGUMENT: N/A 9.PRECEDENT/POINT OF LAW/ANALYSIS: The courts are reluctant to make a law against publishing information from public documents that are readily available to the media. Even if the information published is offensive, having a rule against publishing that information would make it very difficult for the press to inform their readers about the public business and yet stay within the law.

10.MAKE YOUR ARGUMENT: DOES THIS CASE SUPPORT OR DETRACT FROM FIRST AMENDMENT PROTECTIONS? WHY/WHY NOT? HOW? SUPPORT YOUR CLAIMS, FOR UNSUPPORTED CLAIMS CRUMBLE--U.C.C. I argue that this case does support First Amendment protections. Though there is an ethical aspect to posting the name of rape victims, you can’t exclude certain things that are public information from being published and allow other things to be published that are public information. Things that are in public court documents should be able to be reported on in news mediums.

Florida Star v. B.J.F. (1989) 304 1.CASE NAME: Florida Star v. B.J.F. 2.CITATION/DATE: 491 U.S. 524 (1989) 3.LEVEL OF COURT: The Supreme Court 4.FACTS (The story. Who's suing whom, and why.): A newspaper inadvertently published a sexual assault victim’s name; the victim (plaintiff) sued for damages. This resulted in a case involving freedom of the press and privacy rights. 5.PLAINTIFF'S LEGAL REASONING/ARGUMENT: N/A 6.DEFENDANT'S LEGAL REASONING/ARGUMENT: N/A 7.COURT’S DECISION AND LEGAL REASONING: The Court ruled that a privacy action could not proceed against a newspaper that inadvertently published a sexual assault victim’s name it had obtained from a document that was not a public record. The document had been mistakenly given to the reporter by a police officer, and the publication violated the newspaper’s own policy against publishing such information. The

document had been mistakenly given to the reporter by a police officer, and the publication violated the newspaper’s own policy against publishing such information. “The fact that state officials are not required to disclose such reports does not make it unlawful for a newspaper to receive them when furnished by the government,” wrote Justice Thurgood Marshall. 8.DISSENT (if any) LEGAL REASONING/ARGUMENT: N/A 9.PRECEDENT/POINT OF LAW/ANALYSIS: . A precedent/point of law for this case is the basic elements of public disclosure of private facts. This legal test has three torts: 1. There must be publicity given to private facts about an individual. 2. The revelation of these facts must be highly offensive to a reasonable person. 3. The published material must not be of legitimate public concern. While these three torts may have been passed, this case also followed the precedent of naming rape victims, which is a controversial issue in the realms of privacy law. With these issues, two questions arise: Can the name or identity be legally published? And, should the name or identity be published? 10.MAKE YOUR ARGUMENT: DOES THIS CASE SUPPORT OR DETRACT FROM FIRST AMENDMENT PROTECTIONS? WHY/WHY NOT? HOW? SUPPORT YOUR CLAIMS, FOR UNSUPPORTED CLAIMS CRUMBLE--U.C.C. I would argue that the outcome of this case does not support and detracts from First Amendment protections. As stated in the reading: “The chances, then, of the victim of a sexual assault successfully suing a newspaper or broadcast station or blogger for revealing his or her name are extremely remote, if not impossible.” No matter how the information is received, it seems this is a violation of p...