Entertainment Law
Professor Myers
Fall 2010
I. Sex and Violence in Entertainment and the Law
A. Entertainment and the First Amendment
1. Joseph Burstyn v. Wilson
B. Entertaining Sex
1. Skyywalker Records v. Navarro
a. Obscenity applied to music
b. Court applied the 3-part Miller Test:
i. The Prurient Interest
ii. Patently Offensive
iii. Social Value
2. Ashcroft v. Free Speech Coalition
3. Federal Communications Commission v. Pacifica Foundation
a. George Carlin’s filthy words
b. Led to the regulation of indecent (rather than obscene) material on television and radio
c. Indecency defined: language or material that depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs
d. The unique pervasiveness of tv and radio justifies an indecency standard
C. Entertaining Violence
1. Federal Communications Commission v. Fox Television Stations
a. Page 4 of supplement
2. Diane Herceg and Andy V. v. Hustler Magazine
a. Generally no liability when people emulate conduct to their detriment
D. Self Regulation by the Entertainment Industry
1. RIAA (Recording Industry Association of America)
a. Warning label: Parental Advisory Explicit Lyrics
2. MPAA (Motion Picture Association of America)
b. Ratings Sysytem
i. System of self-regulation
ii. Jointly administered with the National Association of Theater Owners (NATO)
iii. Presently, there are 5 different ratings: G, PG, PG-13, R, and NC-17, chosen by the Rating Board within the MPAA’s Classification and Rating Administration (CARA) (board of 7-11 parents serving terms of various lengths and headed by the Rating Board Chairman who is chosen by the MPAA President; identity of board members are kept anonymous)
iv. After film screening, board members are asked, “do you think most American parents will want this film restricted or not?” If yes, R or NC-17; if no, the G, PG, or PG-13 using the following criteria: theme, violence, language, nudity, sensuality, drug abuse, and other elements
v. If a producer is unhappy with the rating, there are three options: (1) ask the board why the film was given the rating and then edit the film to address those concerns; (2) appeal the rating to the MPAA Appeal Board; (3) release the film unrated
3. Miramax Films v. MPAA
a. The court found that the P could not prove overt administrative misconduct, so the case was dismissed and the MPAA was not held liable, but the court noted that the ratings system was skewed to prevent or shield viewers from sex more so than violence and that the system should be reevaluated
II. Privacy Rights and Entertaining the Public
A. Defamation
1. Background
a. Potential liability can have a chilling effect
b. The claim must be brought by a specific individual or small group of individuals, claims cannot be brought by a large, sweeping group, such as a class action suit
c. Defamatory comments do not have to be widely disseminated, it only has to be published to one other person to be actionable under the law
d. The statement must be false
2. New York Times v. Sullivan Standard: in defamation actions brought by public officials, the plaintiff must prove that the statement was made with actual malice – with knowledge that it was false or reckless disregard for the truth
3. Curtis Publishing Co. v. Butts: extended the New York Times standard to public figures
a. General purpose public figure
b. Limited purpose public figure: drawn into or places themselves in a particular public controversy, and by virtue of that, they have to prove actual malice as to the thing in controversy; they also have the burden of proving falsity; there must be clear and convincing evidence of actual malice
4. Private plaintiff, public concern
a. Court imposes a lower burden on a private plaintiff, states cannot impose strict liability, so the standard is basically negligence; if you can show the reporter was sloppy and did not follow proper investigative techniques, there can be a claim of negligence, which is a lower standard of fault, but it is limited to recovering actual damages; you have to show actual malice to recover presumed and punitive damages
5. Davis v. Constantin Costa-Gavras, Universal Studios, and MCA, Inc.
a. P alleges that producers who made a movie based off of a book, which was written based on a true story, defamed him (the P) in the movie
b. Issue was whether there was any evidence of actual malice, and the court found that there was not
c. Could potentially be defamatory, because there are cases in which if the audience knows who the film/book is depicting, and the film defames the individual, then they can recover damages
d. In this case, the producers had a reliable source (the book) and had taken major precautions to make sure the film was on key with the book; although they had created some additional scenes that were embellished, this did not amount to actual malice either
6. Milkovich v. Lorain Journal
a. P argues that the First Amendment should also provide a privil
than showing the whole performance.
C. Matthews v. Wozencraft
1. Court held that misappropriation did not occur and:
a. The person’s name or likeness must be appropriated for value
b. They must be able to be identified from the book
c. Has to benefit the defendant
D. Unusual exception to general rule: Eastwood v. The Superior Court of Los Angeles County
1. Involves the Enquirer and heavy use of Eastwood’s name and image to sell their magazine
2. Court said they were using his name and image to sell publication in a commercial way
3. There are some circumstances where news reporting and magazine writing are not absolute defenses
E. Right of Publicity expanded beyond aspects of a person’s identity (name, likeness, image, or photograph)
1. Vanna White v. Samsung Electronics America
a. Samsung developed a campaign where Vanna was portrayed as a robot; she did not consent to the campaign and was not paid for it
b. Court pointed out that individually the aspects say little but put together, there is no doubt it is Vanna
c. Held that Vanna’s right to publicity was violated
IV. Copyright Law
A. Overview
1.Within Congress’ Power to Regulate
a. Comes from Article I, §8, Clause 8 (Intellectual Property Clause) of the Constitution
2. Incentive for Creative Effort
a. Copyright protection provides incentive for creative effort
b. Otherwise, those trying to imitate works could make low-cost copies, and there would be no ability to recoup the expense of making these expensive motion pictures
3. Copyright protection extends only to, “original works of authorship fixed in any tangible medium of expression.”
B. Originality
1. Miller v. Universal City Studios
a. Facts, ideas, and theories are not protectable
b. Protectable, copyrightable expression, this is what copyright can prevent others from taking
c. The effort in gathering information, “the sweat of the brow,” is also not protectable
C. Fixation
1. Must be sufficiently permanent or stable to permit it to be perceived
