SUPREME COURT RULES THAT POLICE MUST GET WARRANT BEFORE SEARCHING CELL PHONES

Yesterday, the U.S. Supreme Court ruled in two cases – Riley v. California and U.S. v. Wurie (collectively “Riley”) – that police may not search a person’s cell phone just because the phone is in the person’s possession when he or she is arrested. Instead, the police must either get a warrant to search or else rely on case-specific facts giving rise to individualized suspicion that evidence on the cell phone will be destroyed before a warrant can be obtained. The Riley decision was virtually unanimous, with Justice Alito joining only in part.

After David Riley was arrested in California for a firearms offense, police searched his pockets and found a smartphone. Searches of the contents of the phone disclosed: that Riley had used the term “CK,” short for “Crip Killer,” suggesting that he was a member of the Bloods street gang; videos in which unknown persons used the word “Blood”; and a photo of Riley in front of a car involved in a recent shooting. This evidence was introduced at trial against Riley in California state court to prove his involvement in the shooting and his gang membership.

In a separate case, Brima Wurie was arrested on drug charges in Massachusetts, and police seized a flip phone from him. Police noticed numerous phone calls coming from a contact identified as “My House.” Police searched the phone for the phone number of the “My House” contact, then located the address associated with that number using an online directory. Police then secured a warrant for that address and seized drugs, cash, and a firearm, all of which were introduced at his federal trial on drug and gun charges.

Riley and Wurie each conceded that police had authority to seize their phones pursuant to the “search incident to arrest” (SIA) doctrine, which permits police, without a warrant, to search the person of an arrestee and seize whatever they find. They argued, however, that police went beyond that authority by searching the contents of their phones without a warrant.

The Court agreed. The Court distinguished a 1973 case, U.S. v. Robinson, in which it had upheld as an SIA the search of a cigarette pack obtained from an arrestee. In Robinson, the Court had justified the SIA rule on two grounds: preventing the arrestee from accessing an item that could be used to injure the officer or effect an escape, and preventing him from accessing evidence that could be concealed or destroyed. In Riley, the Court determined that inthe context of a cell phone, the first justification is obviously inapplicable. And the government had shown nothing beyond speculation that searching a cell phone immediately was necessary to avoid having its contents encrypted or remotely wiped.

On the privacy side of the ledger, the Court determined that digital evidence is of a completely different character than the non-digital evidence found in the cigarette pack in Robinson. While a limited number of personal items might be carried in a person’s pockets or purse, cell phones (particularly smartphones) carry a virtually limitless number of items that are quite private in nature: potentially thousands of e-mails and phone and text messages, a veritable music and video library, a daily calendar going back years, GPS location information, an internet browsing history, and dozens of apps. Each of these might reveal very personal information about the arrestee. And the Court said that this was true not only of Riley’s smartphone but also of Wurie’s flip phone. In short, the quantity and quality of information contained on a cell phone is different from non-digital evidence that might be found on an arrestee’s person in the same way that “a ride on horseback is [different] from a flight to the moon.”

In some cases, the Court acknowledged, police will have sufficient suspicion both that a cell phone contains evidence of a crime and that the evidence might be destroyed before a warrant can be obtained. In those cases, the police will be able to search without a warrant, but only if they can point to particular facts and circumstances indicating a need to search imminently. Otherwise, they will have to convince a judge to issue a warrant based on probable cause that the cell phone contains evidence of a crime.

Riley has the potential to be a very significant case. Not only does the ruling have the immediate effect of barring searches of cell phones, and presumably other computer devices, incident to arrest, but it also has broader implications. For the first time, the Court has acknowledged and coherently articulated that digital data are different than non-digital data, not only in degree but in kind. In the years to come, Riley will likely be viewed as the case that brought the Fourth Amendment into the 21st century.

 

Michael J. Zydney Mannheimer

Professor of Law

NKU Chase College of Law

518 Nunn Hall

Highland Heights, KY 41099

859.572.5862

mannheimem1@nku.edu

 

 

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Ninth Circuit Provides Important Protection To Bloggers

In an important victory for free speech advocates, the Ninth Circuit has joined other courts in establishing that authors protected by the First Amendment need not be journalists to have such robust protections.

In Obsidian Finance Group, LLC v. Cox, — F.3d —- (2014) (filed Jan. 17th, 2014), the Ninth Circuit overturned a lower court decision that limited certain First Amendment protections to institutional journalists. The Court explained that “protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story.”

In aligning the Ninth Circuit with other circuits which have addressed the issue, the court reaffirms that negligence is the minimum legal standard for any case involving matters of public interest (and possibly all cases). To receive general damages without suffering specific harm and to receive punitive damages, the plaintiff must establish that the defendant published the statements with actual malice, meaning intentional knowledge of falsity or reckless disregard of the truth.

In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Supreme Court established the modern First Amendment framework. Public officials must prove actual malice to prove liability. Curtis Publishing Co. v. Butts, 388 U.S. 130, (1967), then extended this standard to public figures. A decade later, in Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974), the Supreme Court held that the First Amendment required a negligence standard for private defamation actions. Significantly less than the actual malice standard, it nonetheless established that there could not be liability without fault.

In Obsidian Financial Group, the Ninth Circuit does not suggest the defendant is blameless:

Crystal Cox published blog posts on several websites that she created, accusing Padrick and Obsidian of fraud, corruption, money-laundering, and other illegal activities in connection with the Summit bankruptcy. Cox apparently has a history of making similar allegations and seeking payoffs in exchange for retraction. See David Carr, When Truth Survives Free Speech, N.Y. Times, Dec. 11, 2011, at B1. Padrick and Obsidian sent Cox a cease-and-desist letter, but she continued posting allegations.

The accusations and statements, however, were difficult to view as factual assertions. Where there were assertions of fact, the court explains, the plaintiff must establish the negligence of the statements.

The Ninth Circuit also sidestepped the issue whether the Gertz negligence standard applies to matters of purely private concern. It noted the unresolved question, when it stated that “the Supreme Court has ‘never considered whether the Gertz balance obtains when the defamatory statements involve no issue of public concern.’” (quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749, 757 (1985) (plurality opinion)).

Instead, the Ninth Circuit noted that the blog was made available to the public at large, just as every blog does. Moreover, the court noted that “public allegations that someone is involved in crime generally are speech on a matter of public concern.” So instead of answering whether the negligence standard applies to private matters, the court expanded the realm of public discourse to almost any public accusation.

This strategy has the effect of expanding the negligence standard to almost any claim. It may leave certain personal matters personal, though this is unclear. It could also leave certain formats, such as personal emails, texts, and friends’ lists as matters of purely private concern, but undoubtedly many of allegedly defamatory posts on such platforms will also be matters of public concern.

The distinction between matters of public concern and purely private matters has less and less meaning, and the distinction is likely to continue to erode in the context of defamation, though perhaps remain relevant in some issues involving privacy.

Nonetheless, the case is an important victory for free speech interests. Of course, this does not mean anything can be published with impunity. Negligence is not a terribly difficult test to meet and those plaintiffs who have truly been harmed will still have their day in court. It is difficult to be the subject of online attacks, but the rules of law should apply equally to all speakers, journalists, bloggers, and citizens alike. In the Ninth Circuit, it now does.

Court hands at least temporary rebuke to NSA for domestic spying

nsa

NSA (Photo credit: shawnblog)

The New York Times has been highlighting the federal government defeat in the first lawsuit over NSA surveillance of U.S. telephone and internet activity outside the FISA court jurisdiction. The decision in Klayman v. Obama represents a strong rebuke to the NSA. Written in a tone of outrage, the district court decision emphasizes the profound differences that exist in the current NSA surveillance program from the historical precedents upon which the claim of constitutionality is based.

In Smith v. Maryland, 442 U.S. 745 (1979), the Supreme Court held that the use of a “pen register” was not a violation of the Fourth Amendment because the information sent to the telephone company was a business record provided without a reasonable expectation of privacy.[1] The pen register records only the numbers dialed on a telephone. Any expectation of privacy that could exist in the telephone numbers a person dialed was unreasonable.

From the diminutive pen register acorn, a mighty oak has grown to obliterate the sunlight that once shined light on government activities. That oak is the pervasive surveillance program:

[T]he almost–Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979. … The notion that the Government could collect similar data on hundreds of millions of people and retain that data for a five-year period, updating it with new data every day in perpetuity, was at best, in 1979, the stuff of science fiction. By comparison, the Government has at its disposal today the most advanced twenty-first century tools, allowing it to “store such records and efficiently mine them for information years into the future. … Records that once would have revealed a few scattered tiles of information about a person now reveal an entire vibrant and constantly updating picture of the person’s life.”

Critics of the district court opinion point to the precedent of Smith to suggest that the decision reflects an activist agenda, but proper case analysis requires a judge to look to the facts of a case rather than a simplistic summary of the rule. Factually, the public expects far more privacy in the metadata disclosed on their computers, phones, tablets, and mobile devices than the 1979 consumer expected from the telephone company.

In addition, as the court highlighted, the relationship between the telecommunications companies and the government could be viewed as making the telco’s agents of law enforcement. As agents of the police, the third party doctrine no longer applies.

More importantly, the scale of the surveillance and the mosaic of coverage creates a vastly different experience than that previously adjudicated in Smith or the other decision before the Supreme Court.

In United States v. Jones, 132 S. Ct. 945 (2012), the Supreme Court started to review the potential for wide-scale extensive surveillance. The majority decision demurred on the question, finding a search occurred using common law trespass analogies. But five justices opined that the mosaic of surveillance has a constitutional consequence that will need to be addressed.

Dan Solove has written on both the Klayman decision and the importance of privacy in metadata. His conclusion:

 Smith, and many other Fourth Amendment cases, need to be rethought in light of modern technology where surveillance can be so systematic and pervasive. There is a real difference between being able to engage in a small discrete amount of surveillance and having such broad and sweeping surveillance powers as the NSA is exercising. The challenge is where to draw the lines. This problem exists mainly because Smith still remains viable and must be dealt with. I think it’s time for Smith to be overturned, and so there wouldn’t be such line-drawing challenges.

The Katz approach to expectation of privacy may not be the most useful tool for assessing the scope of pervasive privacy. Despite the coverage of the NSA, I expect that few members of the public can truly comprehend the extent to which the movement of every communication, every Internet-connected device, all information on those devices, the tracking of other objects that are reported to central databases, and photographs and video taken by anyone can be integrated into a pervasive picture of movement. Is this science fiction? Or is it the goal of the NSA five-year strategic plan. Unless the courts or Congress begin to say no to a mosaic of unrelenting surveillance, this plan will be enacted soon. With taxpayer dollars. And without oversight.

The decision is being appealed.


[1] Smith explains the constitutional privacy framework: The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In determining whether a particular form of government-initiated electronic surveillance is a “search” within the meaning of the Fourth Amendment, our lodestar is Katz v. United States, 389 U.S. 347 (1967). In Katz, Government agents had intercepted the contents of a telephone conversation by attaching an electronic listening device to the outside of a public phone booth. The Court rejected the argument that a “search” can occur only when there has been a “physical intrusion” into a “constitutionally protected area,” noting that the Fourth Amendment “protects people, not places.” Because the Government’s monitoring of Katz’ conversation “violated the privacy upon which he justifiably relied while using the telephone booth,” the Court held that it “constituted a `search and seizure’ within the meaning of the Fourth Amendment.”

Nurturing culture to build economies and communities

A newly released briefing by Professor Ann Markusen of the University of Minnesota Hubert H. Humphrey Institute of Public Affairs highlights the importance and influence of a creative arts community serves as a tool to develop a region’s broader economic growth.

The paper published by the Ewing Marion Kauffman Foundation highlights the opportunities created by encouraging a creative arts economy to help develop a more robust economic environment. Among the key findings of the report:

City appreciation for cultural entrepreneurship has grown following economists’ and city planners’ documentations of the roles that artists play in the local economy. Many artists and designers contribute to the city’s economic base, bringing in income from elsewhere by exporting their creations—books, recordings, visual art—and by travelling to perform elsewhere. Pools of artists attract and anchor cultural industry firms in fields like publishing, advertising, music, design, and architecture. Artists often work on contract in other industries to design and market products and services (visual artists, musicians, and writers) and improve employee relations (actors). …

Despite heightened interest in fostering artists/designers as innovators and entrepreneurs, most cities have found that traditional policies and services don’t work for artists. … Artists are many times more likely to be self-employed than are scientists and engineers. Some 48 percent of artists reported in the 2000 Census long form that they are self-employed. … Overwhelmingly, surveys of artists underscore that they need and want to develop business skills. Many organizations—some nonprofit, some linked to higher educational institutions, some for-profit—offer artist-tailored entrepreneurial training.

The work by Professor Markusen reinforces many of the themes discussed in the recent  NKU Chase Law + Informatics Institute program: Success Strategies for the Professional Artist in the Digital Age. That program helped artists and their attorneys learn to navigate self-promotion, online contracting, sophisticated financing, and a host of challenges that pull the artist away from the creative process and into the fast-paced world of digital commerce. A webcast is available of the program.

Group shot of panelists at Success Strategies for the Professional Artist in the Digital Age event

“With social media gaining in popularity, more people are becoming content creators, and there is great opportunity to share creative works, but many are now becoming aware that there is real value to maintain some control over what is shared,” commented Terry Hart, director of legal policy, Copyright Alliance.

“Artists have long been recognized as commodities in our communities, driving innovation and adding color to our environment,” shared Sarah Corlett, director of creative enterprise, ArtsWave SpringBoard. “It has become increasingly more important that our creative sector has opportunities to turn their passion into profit through education and training. This improves the likelihood that these individuals will stay in our region and continue to make this an even better place to live.”

Professor Markusen, building on her earlier scholarship concludes in the report that for cities, “economic development strategy/practice is increasingly turning to occupational approaches, asserting the significance of human capital and entrepreneurship in supplementing traditional industry-targeted programs.”

But the creative artist panelist had some words of caution.  Dayton School of Law professor Dennis Greene reminded audience members that “the devil is in the details.”  Jennifer Kreder noted “when art is created in more traditional visual medium and then digitized several issues will come up” to which Stephen Gillen explained that “there is no ‘one size fits all answer'” for how best to contract for rights.

The Kauffman Foundation report provides a strong reminder of what cities can do to improve the likely success of artists and entrepreneurs in their communities. These are partnerships well worth promoting.

Success Strategies for the Professional Artist in the Digital Age was presented by the NKU Chase Law + Informatics Institute and sponsored by the ABA Business Section Cyberspace Law Committee, Copyright AllianceArtWorks SpringBoardKentucky Arts Council, and Frost Brown Todd, this program featured expert attorneys and filmmakers who discussed a range of business and legal practices.

 Frost Brown Todd

ABA Cyberspace Law Committee
Springboard
KAC
Copyright Alliance

Social Media in the workplace – wide-ranging overview now available

In a recent blog post regarding Sam Moore‘s claim for publicity rights in a fictional film, I provided a general update on publicity rights law because such laws are now being used as part of the social media agreement between the public and such companies as Google and Facebook.

The discussion about continuing evolution of publicity rights doctrine is part of a larger review I have written on the role of social media across the spectrum of media law.  That working paper, Social Media in the Workplace – From Constitutional to Intellectual Property Rights is now available at SSRN: http://ssrn.com/abstract=2348779 or for download.

Social media has become a dominant force in the landscape of modern communications. From political uprisings in the Middle East to labor disputes in Washington State, social media has fundamentally disrupted the way in which communications take place. As noted constitutional scholar Erwin Chemerinsky explained, “technology has changed and so has First Amendment doctrine and American culture. It now is much more clearly established that there is a strong presumption against government regulation of speech based on its content.” Just as the government must tolerate more speech, the same thing is true about employers. Chemerinsky further notes that “for better or worse, profanities are more a part of everyday discourse.” Abrasive speech may be coarse from the word choice or may more readily upbraid the objects of the speech. Whether foul or abusive, such speech now pervades commercial and social media.

Social media fundamentally upends the notion of the traditional commercial media environment and with that, it reverses the established legal doctrine from constitutional assumptions to everyday rules involving copyright, defamation, and unfair labor practice. For employers, these rules are particularly important to navigate because they effect the manner in which the companies communicate with the public, how employees communicate with each other, and how laws are restructuring the employee-employer relationship. The transformation is taking place with changing policies affecting trade secrets, confidential information, copyrighted material, aggregated data, trademarks, publicity rights, and endorsements.

This article highlights the nature of the changes as they present the new paradigm shift and provides some guidance on how to prepare policies for the transitional model. The article tracks the rise of the many-to-many model of social media, its effect on commercial speech, intellectual property, and labor law. The article concludes with suggestions on employment policies geared to managing these changes in the modern workplace.

There will be a CLE program sponsored by the Dayton Intellectual Property Law Association on Friday November 8, 2013 featuring these materials.

Sam Moore loses publicity rights dispute with The Weinstein Company while the use of the Transformative Use Test is applied again

Publicity Rights continue to vex courts and counsel. An October 31st decision of the Sixth Circuit in Moore v. Weinstein provides yet another unfortunate twist to the judicial approach to balancing publicity rights with free speech rights.

The litigation stems from the 2008 film Soul Men produced by The Weinstein Company starring Samuel L. Jackson and Bernie Mac. Grammy winning artist, Sam Moore claimed the movie was an unauthorized life story because of the title, story-line, and music used in the film. Having lost on appeal, Moore took his fight to the Sixth Circuit where the court again sided with The Weinstein Company.

The problem with the decision is not the outcome. Instead the concern is that the court interpreted a state law which relied on the Restatement (Third) of Unfair Competition to determine the scope of publicity rights but still insisted on adding an additional opportunity for plaintiffs to stop communicative works if the defendants could not prove the works were transformative.

State law protection of publicity rights are constrained by free speech concerns.[1] Publicity rights are protected as a common law extension of privacy,[2] but like other common law doctrine affecting speech, many aspects have been constitutionalized.[3] Publicity rights are properly considered a form of limitation on commercial speech and should be subject to legitimate content regulation as is allowed by the FCC and FTC, namely intermediate scrutiny.[4] Traditional publicity rights doctrine first asks whether the use of the name or likeness involves a commercial transaction.[5] The commercial transaction may be the sale of a commercial item or an endorsement of a good or service.[6] If the use of the publicity rights constitutes an endorsement, then the FTC endorsement guidelines offer further liability for unauthorized use.

In theory, formulations such as that embodied in the Restatement (Third) of Unfair Competition should provide clear breathing room between expressive works and their commercial cousins. As the Sixth Circuit recently stated, “A viable right-of-publicity claim usually requires (1) defendant’s use of plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to the defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.”[7]

Section 47 of the Restatement sets an explicit limit on the scope of publicity rights:

The name, likeness, and other indicia of a person’s identity are used “for purposes of trade” under the rule stated in § 46 if they are used in advertising the user’s goods or services, or are placed on merchandise marketed by the user, or are used in connection with services rendered by the user. However, use “for purposes of trade” does not ordinarily include the use of a person’s identity in news reporting, commentary, entertainment, works of fiction or nonfiction, or in advertising that is incidental to such uses.[8]

The scope of publicity rights explicitly excludes news, entertainment, and creative works.[9] The limitation embodied in the Restatement is written to be categorical, which provides for greater certainty and reinforces the importance of free speech rights and avoidance of a chilling effect caused by fear of litigation involving a person’s identity in a communicative work. Comment d. to the Restatement recognizes this concern by stating “[b]roader restrictions on the use of another’s identity in entertainment, news, or other creative works threaten significant public and constitutional interests.”[10]

Nonetheless, in practice, publicity rights are tested under a variety of inconsistent court-fashioned doctrine which do not balance commercial and speech interest nearly as cleanly as does the Restatement. “Various commentators have noted that right of publicity claims—at least those that address the use of a person’s name or image in an advertisement—are akin to trademark claims because in both instances courts must balance the interests in protecting the relevant property right against the interest in free expression.”[11]

The Rogers test[12] most squarely distinguishes between commercial works and communicative works. Under that test, a court should not “permit the right of publicity to bar the use of a celebrity’s name in a movie title unless the title was ‘wholly unrelated’ to the movie or was ‘simply a disguised commercial advertisement for the sale of goods or services.’”[13] This test most closely mirrors the FTC commercial endorsement guidelines, particularly if the recognition of disguised commercial advertisements extends to the various undisclosed endorsements.

The Predominant Use test loosely balances the free speech rights of the publisher against the economic goals of that publisher.[14] Works that predominantly exploit the commercial value of identity must certainly include all celebrity magazines, ESPN, and the Sunday section of the New York Times. The fact that a work is published under a profit motive does not transform the content into commercial speech.[15] The Predominant Use Test is ineffectively under-inclusive and over-inclusive, making it unhelpful for jurisprudential guidance.[16]

The third common test flows from copyright law rather than trademark law. Based upon the Supreme Court jurisprudence involving fair use, the California Supreme Court adopted the transformative test from the first factor of copyright fair use to determine the right of publicity free speech doctrine.

According to the Supreme Court as applied by the California Supreme Court,

the central purpose of the inquiry into this fair use factor ‘is to see … whether the new work merely “supercede[s] the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.”[17]

To the first factor of the copyright test embodied in Transformative Test, the California Supreme Court obliquely reintroduced the copyright fair use test’s fourth factor: the effect on the potential market for the work.[18]

Virtual worlds and video games may trigger the most direct conflict between publicity rights and free speech jurisprudence.[19] The communicative nature of video games highlighted in Brown v. Entm’t Merchs. Ass’n should require the medium be treated like any other.[20] Nonetheless, both video game manufacturers and the courts tend to continue to treat these works as if they are commercial products rather than works of expression protected by the First Amendment.[21] As products, they are commercial works subject to the Transformative Test or another of the balancing tests rather than excluded from the limitation in publicity rights that such rights only apply to commercial products or the advertisements for such goods and services.

The communication in a video game generally is not a proposal of a commercial transaction or the sale of a product, so rights of publicity simply do not apply.[22] If instead, the media is used to make an endorsement or advertise a commercial product, then the FTC endorsement guidelines and the state publicity rights come back into play.[23]

This distinction should guide the behavior and social media policies of employers. To the extent they are creating content as media broadcasters, there are no publicity rights constraints and no endorsement concerns.[24] If instead the content is designed to promote commercial transactions, serve as advertisements, or sell merchandise, then permission is required from the endorser and the endorser must be providing factual, honest information.

The confusion surrounding publicity rights raises serious chilling effects. As reported in the Hollywood Reporter, the NCAA is trying to take up an appeal in Keller v. EA Sports despite the settlement in the case following a ruling unfavorable to EA based on an application of the Transformative Use Test. The NCAA petition for cert (read here) provided:

[T]he interplay between right-of-publicity claims and the First Amendment is an issue on which the lower courts are badly divided. It is also important, affecting the fundamental rights of a wide array of speakers—from movie and television producers (e.g., The Social Network) to biographers and songwriters (Bob Dylan’s Hurricane), to videogame makers, like one of the defendants here.

Something must be done to restore to return the presumption of free speech and eliminate the chilling effect of publicity rights claims against communicative works. Publicity rights are very important economic and personal rights which should be enforced against commercial theft of identity, but that does not mean they should be used to stifle the ability of other authors and artists. A Supreme Court decision in Keller will be unlikely to develop the balance needed to restore the law. Instead federal legislation is a more likely tool to get the balance correct.


[1] See, e.g., Donahue v. Warner Bros. Pictures Distributing Corp., 272 P.2d 177 (Utah 1954) (publicity rights statute limited to the use of name or likeness in advertising, or the sale of “some collateral commodity.”); Cal. Civ. Code § 3344(a) (West 1997) (limiting protection to use “on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent.”).

[2] See Samuel Warren & Louis Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). See also William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 383–85 (1960).

[3] Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 577 (1977) (In distinguishing between defamation, false light and publicity cases, the Court explained that the “Constitution does not prevent Ohio from … deciding to protect the entertainer’s incentive” to perform.)

[4] See Sorrell, 131 S. Ct. 2653, supra note 53 at 2663; Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 562 (1980); Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978) (upholding state lawyer advertising regulation); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771-772 (1976) (establishing First Amendment protection for commercial speech and recognizing right of recipients of commercial speech to have access to the content).

[5] See, e.g., Comedy III Productions, Inc. v. Gary Saderup, Inc., 21 P.3d 797, 802 (Cal. 2001).

[6] Id. at 802 (although the speech was not an “advertisement, endorsement, or sponsorship of any product,” defendant nonetheless “used the likeness of The Three Stooges on . . . products, merchandise, or goods within the meaning of the statute.”).

[7] Moore v. Weinstein Co. LLC, 12-5715, (6th Cir. Oct. 31, 2013) (unreported) quoting Restatement (Third) of Unfair Competition.

[8] Restatement (Third) Unfair Competition §47 (1995).

[9]  Id.  at cmt. c. (“the use of a person’s name or likeness in news reporting, whether in newspapers, magazines, or broadcast news, does not infringe the right of publicity. The interest in freedom of expression also extends to use in entertainment and other creative works, including both fiction and nonfiction.”).

[10] Id. at cmt. d.

[11] Hart v. Elec. Arts, Inc., 717 F.3d 141, 155 (3d Cir. 2013).

[12] Rogers v. Grimaldi, 875 F.2d 994 (2d Cir.1989).

[13] Id.  at 1004.

[14] Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo.2003) (en banc).

If a product is being sold that predominantly exploits the commercial value of an individual’s identity, that product should be held to violate the right of publicity and not be protected by the First Amendment, even if there is some “expressive” content in it that might qualify as “speech” in other circumstances. If, on the other hand, the predominant purpose of the product is to make an expressive comment on or about a celebrity, the expressive values could be given greater weight.

Id.  at 374.

[15] See New York Times v. Sullivan, 376 U.S. 254, 265 (1964). See also Valentine v. Chrestensen, 316 U.S. 52, 55 (1942) (commercial speech cannot evade regulation by appending protected first amendment content).

[16] See Hart, supra note 73 at 154 (“By our reading, the Predominant Use Test is subjective at best, arbitrary at worst, and in either case calls upon judges to act as both impartial jurists and discerning art critics.”).

[17] Comedy III Prods., Inc. v. Gary Saderup, Inc., 25 Cal.4th 387, 404 (2001) (quoting Campbell v. Acuff–Rose Music, Inc., 510 U.S. 569, 579 (1994) (citations omitted).

[18] Id.  at 407.

Furthermore, in determining whether a work is sufficiently transformative, courts may find useful a subsidiary inquiry, particularly in close cases: does the marketability and economic value of the challenged work derive primarily from the fame of the celebrity depicted? If this question is answered in the negative, then there would generally be no actionable right of publicity. When the value of the work comes principally from some source other than the fame of the celebrity—from the creativity, skill, and reputation of the artist—it may be presumed that sufficient transformative elements are present to warrant First Amendment protection. If the question is answered in the affirmative, however, it does not necessarily follow that the work is without First Amendment protection—it may still be a transformative work.

[19] See Hart, supra note 73 at 152-53; O’Bannon v. NCAA, 2010 U.S. Dist. LEXIS 19170 (N.D. Cal. Feb. 8, 2010) (dismissing Keller v. Elec. Arts, Inc., 2010 WL 530108 (N.D. Cal. 2010) to substitute anti-trust claims for publicity rights claims); In re NCAA Student-Athlete Name & Likeness Licensing Litig., 2011-2 Trade Cas. (CCH) ¶ 77, 549 (N.D. Cal. 2011) (ongoing litigation emphasizing anti-trust implication of refusing to negotiate rights with former NCAA players).

[20] Brown v. Entm’t Merchs. Ass’n, supra note 37 at 2737 n.4.

[21] See Hart, supra note 71 at 148-49 (“Appellee [EA Sports] concedes, for purposes of the motion and appeal, that it violated Appellant’s right of publicity; in essence, misappropriating his identity for commercial exploitation.”)

[22] Cf. Comedy III, supra note 71 at 802; Hart, supra note 75 at 149.

[23] Garon, supra note 52 at 615, 624.

[24] See Facenda v. N.F.L. Films, Inc., 542 F.3d 1007, 1017 (3d Cir. 2008) (quoting U.S. Healthcare, Inc. v. Blue Cross of Greater Phila., 898 F.2d 914, 933 (3d Cir. 1990)).

The Estate contends that the program is commercial speech, and we agree. Our Court has “three factors to consider in deciding whether speech is commercial: (1) is the speech an advertisement; (2) does the speech refer to a specific product or service; and (3) does the speaker have an economic motivation for the speech.”

2013 NKU Security Symposium tomorrow, Friday, October 18, 2013

The NKU Chase Law + Informatics Institute, the Center for Applied Informatics, and our event sponsors look forward to the 2013 NKU Security Symposium tomorrow, Friday, October 18, 2013.

The program is free, but you must register. This is your last opportunity.

The Legal Issues in Privacy and Security (Legal Track) will be in Development B of the NKU METS Center in Erlanger, KY.

Legal Track Speakers:

  • John C. (Jack) Greiner, attorney, Graydon Head

  • Scot Ganow, attorney, Faruki Ireland & Cox P.L.L.

  • Jennifer Orr Mitchell, partner, Dinsmore & Shohl LLP

  • Michael G. Carr, JD, CISSP, CIPP, Chief Information Security Officer, University of Kentucky

Click here for the CLE Materials for the maximum of 4.0 general CLE credits approved by KY, OH & IN (new lawyer credits in IN).

  • Jon M. Garon, NKU Chase College of Law

Data Security: Breach Notification Law Issues [pdf]

  • Jennifer Orr Mitchell, Dinsmore & Shohl LLP

Attorneys and Other Contractors – HIPAA Business Associates in 2014 and Beyond [pdf]

For your convenience we have included directions below.

A detailed agenda can be found on the event website at http://cai.nku.edu/security2013/agenda.html

Directions to the NKU METS Center
From Downtown Cincinnati and Northern Kentucky:
I-71/75 South From the South: I-71/75 North … to I-275 West. Take first exit (Exit No. 2 – Mineola Pike). Left turn onto Mineola Pike crossing over I-275. Right turn at second light onto Olympic Blvd. Follow Olympic Blvd. into CIRCLEPORT Business Park past hotels to The METS Center. Parking is FREE in The METS Center’s large lot.

From Indiana:
I-74 to I-275 South into Kentucky. Stay on I-275, which curves East in Kentucky and go about 22 miles all the way past the Greater Cincinnati Airport until you get to Exit No. 2 – Mineola Pike. Right turn onto Mineola Pike. Then right turn at second light onto Olympic Blvd. Follow Olympic Blvd. into CIRCLEPORT Business Park past hotels to The METS Center. Parking is FREE in The METS Center’s large lot.

Special thanks to the sponsors of the legal track:  CincyIP and Frost Brown Todd.