INVASION OF PRIVACY

WHAT IS PRIVACY?
CONSTITUTIONAL ROOTS OF PRIVACY

Categories of invasion of privacy:
Appropriation- use of an individuals name (pen name, legal name, nickname) or likeness
(no impersonation) for commercial purposes without the individual's consent
Publication of private information
Intrusion
False light

Right of privacy- right to be left alone; dies with the individual
Right of publicity- celebrities can control the exploitation of their name/likeness, including
impersonation; can be passed down to heirs
Incidental Use- exception to appropriation when people are walking in the background or are in
large groups
Booth Rule- promotion for news story as an advertisement is an exception to privacy rules (like
magazine uses photos from a previous issue to publicize subscriptions)
Electronic Communication Privacy Act- protects against hacking and interception of private
email; does not apply to employers or universities
Childrens Online Privacy Protection Act
USA Patriot Act- law passed due to 9/11 attacks; sought to prevent further terrorist attacks by
allowing greater government access to electronic communications and other information;
criticized by some as violating civil liberties
Emotional Distress- must prove that parody/satire was a statement of fact not opinion; false
statement; actual malice


Roberson v. Rochester Foldidng Box Company, 1902APPROPRIATION- court ruled that
there was no law of privacy. But the case generated such public outrage that the NY
legislature passed the first statutory law of privacy making it illegal to use ones name or
likeness for advertising or trade purposes without consent.
Pavesich v. New England Mutual Life, 1905- Georgia became the first state to recognize
the right of privacy in common law
Midler v. Ford, 1988-APPROPRIATION when the look-alike or sound-alike is used in a
manner likely to confuse the public, some courts have allowed the celebrity to recover
damages, either on a right-of-publicity theory or on some other ground.
Cox v. Cohn- ruled that it is not an invasion of privacy to publish the name of a rape victim
when that name is a part of public record during a trial
Dieteman v. Time Inc., 1971-INTRUSION ruled that photos taken inside a private home
w/o knowledge were an invasion of privacy.
Leverton v. Curtis Pub. Co., 1951-FALSE LIGHT Post ran a photo of a child at an
accident scene with a story of pedestrian carelessness. Accident had been fault of driver . . .
therefore false light.
Time v. Hill
Hustler v. Falwell- Parody is protected as long as it doesnt claim statement of fact.




ACCESS TO PLACES & INFORMATION

Freedom of Information Act provides access to all records held by federal agencies except
congress, included electronic
Electronic FOIA

Homeland Security Act of 2002/Critical Information Infrastructure Act
Federal Sunshine Act requires all public meetings of government, with few exceptions (including
issues of national security, personnel rules, ect)
State Open Meetings Laws

State Open Records Laws

Right to gather information vs. right to disseminate

Zemel v. Rusk, 1964- the right to speak and publish does not include the right to gather
information.
Pell v. Procunier / Saxbe v. Washington Post, 1974- Reporters have no constitutional right
of access to prisons or their inmates beyond that afforded the general public.
Houchins v. KQED, 1975- Neither the First nor Fourteenth Amendments mandate a right
of access to governmental information or sources of information within governmental
control.
Reporters and private property
Reporters and ride-alongs
Wilson v. Layne / Hanlon v. Berger, 1999 - both involved cases in which law enforcement
officers invited reporters/photographers to accompany them on arrests (Layne) or
gathering evidence (Hanlon) on private property. Does not apply to ride-alongs etc. in
public places.



MEDIA & THE JUSTICE SYSTEM

The Conflict: First Amendment v. Sixth Amendment

Cameras in the courtroom

Hauptman trial

ABA Canon 35

Prejudicial publicity

Types of things the ABA considers prejudicial
Confessions
Lie detector results
Stories on defendants past criminal record
Stories questioning credibility of witnesses
Stories about a defendants character
Stories that tend to inflame the public mood against a defendant
Stories that suggest or declare that a defendant is guilty

CONFIDENTIAL SOURCES
Free Flow of Information Act
Compensatory remedies for prejudicial publicity
Voir Dire
Change of venue / change of verniremen
Continuance
Admonition
Sequestration

Controlling remedies
Restrictive (Gag) order
Trial closures

Reardon Report-
Promissory estoppel- if you make a promise you have to keep it; must prove that defendant
made a promise that was intended and that the plaintiff was relying upon it and that keeping the
promise was required to prevent injustice
Shield laws

Contempt power- judge's power to control what goes on inside his/her courtroom
Summary contempt power-punishment used to protect the rights of a private party in a legal
dispute; fine or imprisonment accumulates until compliance with court (reporter who refuses to
revel source faces jail time)

Civil contempt- punishment used to protect the rights of a private party in a legal dispute; fine or
imprisonment accumulates until compliance with court (reporter who refuses to revel source
faces jail time)
Direct criminal contempt
Indirect criminal contempt


Estes v. Texas, 1965- SC ruled that the First Amendment did not give the press the right to
take photographs during a trial
Chandler v. Florida, 1981- ruled that cameras do not prevent a fair trial and that states
may allow their presence in the courtroom.
KQED v. Vasquez, 1991- federal court upheld the prohibition on television coverage of
executions.
Sheppard v. Maxwell, 1966- controversial trial in which conviction of Sheppard was
overturned due to prejudicial publicity
Gannett v. DesPasquale, 1979
Richmond Newspapers v. Virginia, 1980- Overruled interpretation of Gannett as allowing
closure of criminal trials. Said the public right to attend criminal trials is guaranteed by
common law and the First Amendment.Upholds interpretation of Gannett as allowing
closure of pre-trial hearings.
Press Enterprise v. Riverside Superior Court (I and II), 1984/1986-ruled that the public
and the press have the right to attend the voir dire process. Opened pre-trial hearing
Branzburg v. Hayes (also in re Pappas & U.S. v. Caldwell), 1972-Reporters do not have a
right of confidentiality, no special privilege.
Cohen v. Cowles, 1982 -freedom of the press does not exempt journalists from generally
applicable laws.
Dickinson Rule- Dickinson Rule - contempt citation may stand even though a court order
which resulted in the citation is later ruled invalid. (Not accepted in all jurisdictions).


COPYRIGHT/CREATIVE PROPERTY

COPYRIGHT body of law dealing with intangible property (intellectual property), which exists
to protect the original/intellectual creations of authors, composers, artists, inventors, playwrights
etc.

Patents- protects physical items, items with utility, and the designs of these items

Trademarks- words, symbols, slogans, brands, ect. of companies

Federal Dilution Trademark Act, 1996- which protects famous trademarks from uses that dilute
their distinctiveness,


What kinds of work are protected by copyright law under the 1976 law?
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Exclusive rights in copyrighted works
Right to reproduce
Right to make derivative works
Right to distribute the work publicly
Right to publicly perform
Right to publicly display
Right to transmit


Materials which cannot by copyrighted:








Originality- not a reproduction of existing materials, compilations can be copyrighted because a
creative effort made to compile works

Constitutional basis of copyright law

Duration of ownership

1976 law (took effect Jan. 1, 1978)- life + 50

Bono Act (CTEA-Copyright Term Extension Act)- Life + 50 +20

Compilation

Collective Works

Derivative Works- can't take the work of someone else, manipulate it, and then call it your own
Transformative work

Creative Commons- allows copyright owners to dedicate their works to the public domain

Copyright notice

Work for hire- if employee makes work for employer, ownership goes to employer

Unfair competition/misappropriation

Fair use doctrine- permits limited use of copyrighted material without acquiring permission from
the rights holders if used for educational or personal use (can't make a profit)

Criteria for determining fair use
Purpose and character of use
Nature of copyrighted material
Amount and substantiality of use
Economic impact of use

Guidelines for Educational Use





The World Intellectual Property Organization- File, manage or search patents, trademarks,
designs and appellations of origin.

Berne convention- The Berne Convention requires its signatories to recognize the copyright of
works of authors from other signatory countries

Universal Copyright Convention- international conventions protecting copyright.

Digital Millennium Copyright Act- a U.S. law that gives penalties for copyright infringement on
the internet

Eldred v. Ashcroft, 2003- upheld the Bono CTEA 2003(added 20 years to protection (right
when some Disney characters were nearing end of copyright duration); librarians, academics,
internet opposed to the act), protecting continued protection of copyrights held by companies
such as Disney.
Feist Publications v. Rural Telephone Service Co., Inc., 1991- Eliminated the sweat of
brow argument. Labor invested to gather information does not give ownership when there
is no original creation.
Miller v. Universal Studios, 1981Copyright only protects the way a story is told, not the
story itself -- the expression of the facts, not the facts
Harper & Row v. Nation, 1985- ruled that Nations publication of an excerpt from an
unpublished book by Gerald Ford -- approx. 300 words about Fords pardon of Nixon --
was not fair use.
Campbell v. Acuff-Rose Music, 1984- the use was a parody protected by Fair Use even
though a commercial.
A&M Records v. Napster, 2001- Napster provided the framework for peer to peer file
sharing through a central server. Court ruled it was a contributory infringer and shut it
down.
MGM v. Grokster, 2005- ruled that the act of distributing and promoting a
product/software with the clear intent of fostering copyright infringement is liable for the
resulting acts of infringement by others . . . inducement theory of contributory copyright
infringement.



BROADCAST LICENSING & CONTENT

Deregulation

Ascertainment

Why regulate broadcasting? The government had to allocate the radio spectrum (a limited
resource) in order to stop the chaos caused by radio stations' signals interfering with each other.

Wireless Ship Act, 1910 All ships must have radio capabilities

Radio Act of 1912 - authorized the Secretary of Commerce to issue frequency licenses and
regulated the use of wire on ships for communication with land.

Radio Act of 1927 created FRC; FRCs purpose was to

Communications Act of 1934- established FCC and regulation

Telecommunications Act of 1996 - increased the number of stations that any single company can
own in a market. Intended to encourage the consolidation of ownership.

Multiple Ownership Rules (nationally & within a single market)

Candidate Access Rule

Equal Time/Equal Opportunity Rule

Equal Time exemptions

Fairness Doctrine

Personal Attack Rule- you must notify of the attack, and give them a chance to respond

Political Editorials Rule

Childrens Television Act 1990

Safe harbor policy

Broadcast Decency Enforcement Act

V-chip


Red Lion Broadcasting v. FCC, 1969



Miami Herald v. Tornillo, 1974



Fox v. FCC, 2009, 2012



FCC v. Pacifica, 1978



CBS v. FCC (1981)



UCC v. FCC, 1966